Director of Public Prosecutions v Lawrence (a pseudonym)

[2020] VCC 1167

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN LAWRENCE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July  2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Lawrence (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1167

REASONS FOR SENTENCE

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Rape of sleeping/unconscious woman. Act photographed. 54 years of age now. 49 at time of offence in November 2015. No relevant prior convictions but earlier sexual penetration of his own 9 month old daughter 7 months before this offence when he visited NSW from Victoria; those acts also photographed. Received 13 years 8 months with NPP of 10 years 3 months in District Court of NSW. Totality. Serious offender provisions. Section 6E. new single NPP; section 14

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. James	Office of Public Prosecutions
For the Accused	Dr M. Fitzgerald	Doogue + George Defence Lawyers

HIS HONOUR: 

1.John Lawrence[1], you have pleaded guilty to one charge of rape which carries a 25 year maximum term of imprisonment.  

[1] A pseudonym

2.You were born in 1966, so you are 54 years old now but were 49 when you committed this serious crime back in November 2015.  You have a formal prior criminal history with only a single appearance back in 1988.  That matter is of no relevance at all to my task.

3.However, you are undergoing a very lengthy sentence imposed up in the NSW District Court in May 2018.  That sentence was confirmed in the NSWCCA in May of this year.  The sentence you are currently serving is a 13 year, eight month head sentence with a NPP of 10 years and three months imposed for serious sexual crimes targeting your nine-month-old child.  Those crimes occurred in April 2015 and were photographed by your partner Ellis Walters[2].  The rape I am dealing with occurred in November of that same year with that same partner, Walters, photographing it.  He is now tucked away in prison for a long time as well.  He is not charged with this rape.  You are.

[2] A pseudonym

4.Normally, a court would not be required to consider in any great detail the circumstances of past criminal conduct or the way the earlier case was placed before the court on an earlier occasion or for that matter, the findings made by an earlier judge.  It is a little different here for a number of reasons.  In this case, I am required to pay regard to totality of sentence and to assess whether the effect of my ultimate sentencing orders is appropriate for all of your offending conduct when viewed as a whole.  Secondly, it is obvious enough that two such sexual offences occurring within seven months would be something that I must have regard to even though I am only dealing with one of them.  I have to try to understand your reasons for offending and to assess your rehabilitative prospects, your risk of offending in the future and the need to deter you and protect the community from you.  However, I am not passing sentence in that other matter or required to make findings as to the matters to take into account in that other case.  You committed those crimes and were sentenced by a judge who was required to take into account a variety of matters.  He was required to make various findings.  However I must say more about that other matter as your counsel has seen fit to place before me a report from Dr Lennings which was produced for that NSW District Court appearance.  He relies upon the risk assessment conducted by Dr Lennings and his opinions.  He relies upon other assessments referred to in Dr Lennings report from people associated with Community Corrections NSW, being Douglas Nicholls and Chris Baker.  Each only conducted in relation to that other matter and with no knowledge of this matter.  Dr Fitzgerald placed before me the decision of the NSWCCA but not the sentencing remarks of the District Court Judge, but it is plain from the NSWCCA decision that the sentencing judge made a number of findings as to the absence of remorse, a level of minimisation and rejected the opinion of Dr Lennings in a number of key areas.  I will come back to discuss some of these matters.  Page 8 of the defence submissions is unusual in that regard and it is only reliance on those matters which compels me to look more closely at the NSW offences, your response to that offending and that report.  It is just unavoidable given the way the plea was conducted before me.  It strikes me as bizarre that this material was so much to the fore in this case but it was and so I need to address it.

5.The details of the offence I am dealing with are set out in the written summary of prosecution opening dated 10 April 2020.  The prosecutor Ms James opened the case to me in accordance with that document.  Your counsel told me that with a few exceptions mentioned in his outline, it was an agreed opening and I marked it as Exhibit A on the plea.  In such circumstances, I see no need to fully restate the sentencing facts in my reasons.  I will sentence in accordance with that agreed summary.  The exceptions related to the use that could be made in your case of Ellis Walters having the Skype chat described in paragraphs 10 to 12.  Also the texts sent by you described in paragraph 17 to 19. 

6.Your counsel suggested that those texts may have related to a person other than this victim.  That would not be greatly mitigatory given that it would introduce into the case an admission as to potentially yet another victim.  Even if relating to another person and not this victim, those texts would still be of some worth in making judgements as to your attitude to women, the risk of reoffence and prospects of rehabilitation.  Your counsel did not challenge that sort of use but argued that they did not relate to this actual victim.  I reject that submission.  It is plain they relate to this victim as you say as much in your account to Ms Ferrari.  Strangely, your counsel urged me not to accept your own account in that regard and cited the passage of time and perhaps your being distanced from the subject matter of the texts when speaking to Ms Ferrari.  I am satisfied beyond reasonable doubt those texts did relate to this victim. There is no question about it.  You are describing someone who has house sat for you who you have had sex with, a person who cannot be roused from sleep.  Of course they relate to this victim.  Having said that though, it seems likely that it was bluster or big noting, as by the date those texts were sent, contact with the victim had stopped.  You were still referring to her though and must in some way have been reflecting on what you had done to her.  In a way bragging.  I certainly do not find that you were actually planning what you were suggesting in those texts but you were saying those things to likeminded warped individuals.  The texts give a window into your warped mindset.  That was you sending those texts, not Walters.  You cannot blame Walters for that conduct.

7.As to Walters’s Skype discussions, they are not a feature of aggravation in your case at all but it is a bit hard to see how you could be so surprised, distressed or alarmed by the sharing of images.  You knew that Walters was perverted.  I have no doubt about that at all.  By then you had each been involved in the serious sexual offending against your own daughter.  He photographed that.  An aspect of the offending I am dealing with was for it to be captured on film.  It was being photographed by Walters and you well knew that.  You were posing for the camera.  The presence of a third party and one taking photographs is plainly an aggravating feature in your case and a large one at that.  As to having any role or knowledge in the distribution of that image by Walters, that is a different matter and cannot fall at your feet.  I do not treat it as an aggravating feature at all.

8.After that brief excursion into some strange aspects of the plea and the matters which were in some way in dispute, let me return now to the agreed facts, of which I will say something very briefly.

Agreed facts

9.Your victim is 38 years of age now but was 33 years old at the time of the rape.  She was unemployed, of no fixed address and was known by you to be fleeing a violent domestic relationship.  You said as much to Ms Ferrari.  So she was vulnerable enough on that score and you knew it.  You offered her accommodation.  I am not suggesting it is open to find that this was done with any crime in mind.  I could not be satisfied of that beyond reasonable doubt.

10.In mid-October 2015, she moved into the unit you were living at in Ivanhoe to house sit for you, whilst you and your intimate partner, that male named Ellis Walters, went on a holiday.  Some consensual sexual acts occurred prior to your departure on holiday.  Sex with you and with Walters followed by you and Walters having anal sex.  Then the next day, another consensual act with you in the presence of Walters and then some other sexual activity as is described in the summary.

11.That she engaged in such acts consensually with you or Walters has no role to play at all in terms of the later act I am dealing with.  She was free to consent to those earlier acts.  That was her choice.  Whereas, that later act was an instance of rape.  She was not conscious when it occurred on or about the 15 November.  She consented to nothing.  Indeed as you knew, she was hard to rouse and had given you instructions to treat her with care, if she was not conscious; to treat her as though she was having a seizure.  This you told Ms Ferrari (see para 64).  Well, on the day in question, you undressed her and then yourself.  You must have had some discussion with Walters as to what was going to happen, as Walters was photographing it.  It is a horrible thought to think of two mature adults treating a vulnerable woman as no more than a prop or object.  As though she was a mannequin.  Your counsel said a chattel.  But that is what you did.

12.The lead in and part of the context is you licking her left breast before focusing on her vagina.  You then digitally penetrated her, with that act being captured on film in close up and whilst you masturbated yourself.  She had no knowledge of what was going on.  None.  No knowledge of being undressed before the act, of the act itself or then being dressed after the act.  No knowledge of being photographed in such an exposed moment.  Plainly she was not consenting or able to consent and I am satisfied beyond reasonable doubt you knew that she was not consenting to this act.  That is not a matter of any controversy.  One of the images was transmitted by Walters and as I have said, that does not fall at your feet and no doubt that may have led to the matter coming to light.

13.A warrant was executed upon your premises on 17 May 2016 with various exhibits seized and then examined.  The images were on the computer.  There were at least 10 such images.  I will not set out the texts sent by you in April 2016.  As I said earlier, they are pretty warped and give a clear window into your strange or deviant mindset.

14.Police ultimately spoke to the complainant in 2017 and showed her some of the redacted images and of course, she had no knowledge of them or of the acts.  She felt shocked, violated and disgusted by what she learnt.

15.You had declined to be interviewed back on 17 May 2016, as was your right.  The procedural history is set out in the summary.  In fact, as I understand it from the NSWCCA reasons, you were extradited from this State to NSW in July 2016 and have been in custody since, initially on remand and then of course pursuant to the NSW sentence.  There is then no pre-sentence detention for me to declare.  Your current end date for the NSW sentence I am told is 28 February 2030.  The non-parole period end date is 30 September 2026.

16.The matter resolved at a committal mention in October 2019.

17.So much then for my summary of the summary.  I sentence in accordance with the full summary placed before me.

18.I turn to the victim impact material.

Victim Impact

19.There was no objection taken by Dr Fitzgerald to my receiving the victim impact statement but plainly there were some difficulties in terms of the admissibility of many portions of that document.  That was conceded by the Crown.  I see no need to set out in these reasons a comprehensive audit of what was admissible and what was not.  Neither counsel undertook such a task.  Each party trusted me to take into account the admissible portions of the statement and this I have done.  Some of the various matters and/or difficulties are identified in general terms in paragraph 5 of your counsel's defence outline and there is merit in those submissions and I act on them.  The Crown in paragraph 10 of their submissions took me to matters that could be drawn broadly from the impact statement.  That was not the subject of any challenge by your counsel who conceded the significant impact caused here.

20.Plainly there must be caution in assessing the impacts of the crime as are set out in that document as there are a variety of other potential causes which may well be implicated.  There had obviously been other issues in the victim’s life both before and after this event which had caused stress and loss of enjoyment in her life.

21.However, it was a shocking thing indeed for her to learn that she had been so abused and violated whilst in such a vulnerable state.  A shock to learn that she had been raped and of course that has had a sizeable enough impact.  Imagine how confronting it must have been to see the still images.  Of course, your crime has contributed to a loss of trust in others and fear as to the conduct of others.  How could it not?  Of course it has had significant impact, which is, after all, conceded by your own counsel.

22.I take into account the admissible portions of the impact statement and the impact of your serious crime.  Serious crimes lead to significant impact and your crime has.

Mitigation

23.I turn now then to the matters raised in mitigation.  There was a detailed defence outline dated 24 July filed in this case.  It was marked as Exhibit 1 and I will not set it all out in these reasons.  It is lengthy.

24.

Dr Fitzgerald placed before the court a report from Carla Ferrari, a report from

Dr Lennings as well as the reasons from the NSWCCA delivered in May of this year.

25.In a thorough plea conducted on your behalf, he took me to your background and made submissions about the features of aggravation which were either present or absent in this case.  He made submissions as to the reports he had placed before me and the risk assessments and other opinions contained therein.  He made submissions as to totality of sentence, your prospects of rehabilitation and the various relevant sentencing purposes arising in this case.  He submitted that there was no minimisation of your offending in this case.

26.There were in truth not a large number of matters in mitigation.

27.In mitigation he relied upon the following matters:

·Your early guilty plea;

·The presence of some remorse;

28.Your counsel conceded that this was serious offending which could only be dealt with by a term of imprisonment, some cumulation upon your existing sentence and with the fixing of a new single NPP pursuant to the specific legislative provisions in play. Section 14 of the Sentencing Act 1991 is brought into play here by s.27 of the Prisoners (Interstate Transfer) Act 1983. What it amounts to is this. It is as though that NSW sentence was imposed in this State and that gives me then the power to cumulate and to fix a new single non-parole period under s.14 of the Sentencing Act.

Prosecution

29.The prosecutor Ms James had prepared detailed written sentencing submissions dated 24 July 2020 which were marked as part of Exhibit A. She spoke to some aspects of those submissions. Those written submissions were relatively uncontroversial and contained references to matters of aggravation in the instant case as well as matters of established sentencing principle. For those reasons, I see no need to set out all of the prosecution sentencing submissions in these my reasons. She submitted on behalf of the Director that this was very serious offending with a willingness to degrade a vulnerable victim and with some indications of deviancy on display on here. Your conduct was a grave abuse of this woman. The Director challenged the risk assessments and the reliability of some of the opinions in Ms Ferrari’s and Dr Lennings reports, the motivation for offending, the claimed relevance of the ice use or incitement or manipulation by Walters, the presence of remorse and insight and the submission that you had good prospects of rehabilitation. They argued that this was very serious offending committed upon an extremely vulnerable person. There was no reduction in culpability and many features of aggravation. Totality, though still relevant, was modified by s.6E and here, it was not a course of conduct or an indictment with a number of charges in relation to the same victim or same incident. Here I was dealing with a totally separate crime committed at a different time, in a different State upon a totally separate victim. I was referred to the case of Zhao v R [2018] VSCA 267.

Background

30.I will turn now quite briefly to your background which is set out in great detail in the written outline, as well as in the written materials placed before me including the two reports.  I have no reason not to accept the personal background placed before me and I will not repeat it all now.  There is nothing at all in your early or developmental background of any relevance to my task.  Indeed the plea proceeded on the basis that up until you were affected by illness in 2012, which led onto the meeting with Walters in 2014, you had been a functioning and contributing member of the community.  Employed and engaged in age appropriate relationships.  I do not lose sight of that fact.  This is not one of those pleas where fingers are pointed at a dysfunctional or disadvantaged background.  So, I will deal with your background in a much abbreviated fashion.

31.You were born in January 1966 and are 54 years of age.  You have relatively positive memories of your childhood in Melbourne, both the family setting and school.  You had one sister.  You have no contact with her for reasons not described to me.  You left school in year 10 and did an apprenticeship in butchery and commercial cookery.  After working in that area for some years you went off into the tourism sector as a coach driver and tour guide.  You were married in 1990 and had a son.  You divorced in 1995 and have no contact with that son.  I am not going to set out the full relationship history.  You had a catering business in the Kinglake area and worked as a cook.  You relocated up to regional Victoria to Barkly in the Pyrenees Shire in 2004 and established a coach business and worked as a cook.  You still had some property in the Kinglake area and wound up fighting the Black Saturday fires down here in 2009.  Up until 2012, you had been in long term relationships and in pretty much full employment.  You had some serious health issues in 2012 and in the course of those were diagnosed with HIV.  You had a short-term casual relationship with a woman and that led to the birth of your daughter in 2014, the same daughter who you so seriously offended against in NSW in April 2015.  You met Walters in late 2014 and began a sexual relationship with him and commenced to use the drug ice.  You were working at the time of the offence.  He was not.

32.You claim to have been dominated by Walters and trapped and controlled in that relationship.  It is suggested that he was inciting your conduct and/or grooming or manipulating you.  Your counsel suggested that it only had, as he put it, a ‘very thin role’ to play.  I flagged my concerns in relation to these various matters in the course of the plea and no evidence was called from you.  There is no satisfactory evidence of these matters.  I am not satisfied of any of these matters on the balance of probabilities.  I will say more about the various reports relied upon later in these reasons.

33.For what it is worth, I have no doubt at all that it was a very unhealthy relationship.  Perhaps you two were the worst possible combination.  You were exploring your sexuality, pushing many boundaries and using drugs and doing these things in a very strange relationship.  He, Walters, was a social worker/mentor and it is hard to imagine a less suitable role for him, from what little I know of him.  I am not dealing with him and for all I know, he might point the finger at you.  It is impossible for me to understand the true dynamics of the relationship.  I do not just act on your account of it.  I am not satisfied of your account of it.

34.The fact is, you were both engaged in extreme acts with little or no regard for others or for conventions.  Or laws.  I am told the relationship is at an end.  However, I know that you stayed with Walters after the serious joint acts targeting your daughter.  That is hard enough to fathom.  He is now serving a large sentence.  Larger than yours, though that will soon change.  However, incredibly, you still correspond with him.  That is, I must say, slightly troubling even if it is about mundane matters.  If he was someone controlling and manipulating you, leading you into behaviour which you look back on now as depraved and abhorrent, why is it then that you cannot break the contact?  Lack of physical contact is guaranteed by your respective prison terms yet you still choose to communicate.  Why?  What does the future hold in that regard?  Who knows?  I certainly do not.

35.You have been in custody since July 2016 and were formally transferred to Victoria in September 2019 and you are up at Hopkins in Ararat and employed as a billet and also teaching cookery when you can.  You receive no visitors but not because of the COVID-19 response.  Nothing is made of that issue at all.  Nothing is made of any delay given that you have been serving a sentence and have full credit for the period since you went into custody in mid-2016.

36.You have no supports in the community.  You are a very isolated man.  You will emerge from prison into the community in such a setting many years from now.

37.As indicated earlier, you are still serving a sizeable prison term imposed upon you in NSW in May 2018.  It is not for me to question the appropriateness of that sentence.  Indeed, I proceed on the basis that it was entirely appropriate.  I am not exercising any discretion in relation to that matter.  A judge heard the plea and unsurprisingly, given the gravity of those crimes, imposed a very sizable prison term.  You appealed and the NSWCCA refused your appeal on every ground pressed, including that of manifest excess.

Guilty Plea

38.I turn to the matters raised in mitigation on your behalf.  The first of those is your guilty plea.  I will treat it as a plea made at the earliest opportunity in the circumstances, as you pleaded guilty at the committal mention.  It follows that there was no committal hearing and no trial and hence no cross examination of any witnesses.  That is important.

39.You took this very early legal responsibility for your crime.

40.The community has been spared the time, cost and the effort of a committal hearing or a trial.  Importantly the victim has been spared the experience of giving evidence in court.  So too the various other witnesses, civilian and police witnesses alike.  Giving evidence can itself be a very unpleasant experience especially for a sexual assault victim and that is so despite all the improvements that have been made in the manner in which their evidence is taken in court.  We have support people, intermediaries in some cases, comfort or support dogs, remote witness facilities and a greater preparedness for judges to intervene to prevent unfair or hectoring or misleading cross examination.  Big improvements have been made across the board but it is still, from my observations as a judge over many years, invariably a distressing event to give evidence.  It can really add to the trauma.  It has been completely avoided here because of your guilty plea.

41.You have in these various ways, facilitated the course of justice and I will pass a lesser sentence because of your early guilty plea.  

Remorse

42.I turn then to the issue of remorse.  Your counsel argues that you have some remorse.  He put it no higher than that.  He was not suggesting you had fulsome remorse and no doubt that was a recognition of some of the slightly troubling matters that I will soon turn to.  To have some remorse for an act such as this is  pretty unusual.  Why only some remorse when the act is as bad as this one and so plainly seriously wrong, totally indefensible and criminal?  What is it that impedes genuine and full remorse here?  Anyway that was his submission, that you have some remorse.

43.To that end he relied upon your guilty plea and to some references to remorse in Ms Ferrari’s report.  He says by way of submission there is no evidence of minimisation.  On that score, I must disagree.  Ms Ferrari does not set out much detail at all as to why she describes you as being remorseful.  A bald statement tells me very little.  That may be her opinion but I am not bound to accept it at all and I do not.  Maybe you are saying the right words to give rise to that assessment but not much of that detail is before me.  I suppose she is acting on what you say and how you might appear to her.  She says you are not laying off blame but then either quotes you, or concludes from words you have used, as to the role played by the nature of the relationship, the stressful lifestyle you were leading and the impact of the manipulation, control, exploitative behaviour and grooming of Walters, not to mention the disinhibition brought about by drugs.  The report is replete with your minimisation.

44.You could not explain your decision making process or rationale other than pointing to being under the influence.  As though that is a rationale for this conduct.  A previous psychologist Dr Lennings had asserted that you were remorseful for your past crimes.  Now I am not dealing with that matter and perhaps this is more pertinent to my consideration of Ms Ferrari’s risk assessment and opinions offered up to explain your offending, but Ms Ferrari does not even comment on your extreme level of minimisation for that past offending, even though she received from you in paragraph 58 an account suggesting that the touching of your daughter arose as a desire to provide images to Child and Family services to, in a way, protect your daughter.  That mirrored the account you gave to Dr Lennings in paragraph 4 and 5 of his report.  Now, I am dealing with a different offence of course, but there is something of a pattern.  You plainly do minimise your offending.  You do in relation to each of the sexual offences you have committed, one of which I must pass sentence for.  You blamed Walters when speaking to Dr Lennings.  You said you went along with Walters in April 2015 but of course Dr Lennings had no idea that a serious sexual offence was committed in November of that same year.

45.I suppose an offender can make self-serving statements and can say that there is regret or sorrow or shame.  No doubt some people will say those things because they are true.  But some may say those things without really meaning it or at least have a mixture of feelings.  Not many people would think it a great idea to state openly and directly to someone preparing a report for court purposes that there is no regret for a serious crime.  But then there can be other words, explanations or sentiments expressed which cast real doubt as to the genuineness of, or at least the completeness of any remorse and that is the position I find myself in here.  The same position I might say that the NSW District Court judge found himself in when faced with Dr Lennings’ report.  All manner of things then signalled to that judge a lack of insight, a shifting of blame and the absence of genuine remorse in that case and they are repeated before me to some extent in relation to the matter I am dealing with.  Though by your plea you admit your legal responsibility, you still in my view speak without taking full responsibility.  You do that in relation to the matter I am dealing with, as well as the offence that you have committed against your daughter.  Now, I am only dealing with the one offence but what you have said about the offence in relation to you daughter has a relevance to the risk assessments and opinions which I will soon turn to.  Your counsel made that so by relying upon them in a mitigatory fashion in this case.

46.This offence I am dealing with has nothing to do with being trapped in a relationship or being controlled by another.  It cannot be connected up purely to disinhibition produced by drugs.  Disinhibited people do not just run off and commit crimes as serious and as planned or deliberate as this one.  Incidentally, Dr Fitzgerald confirmed on the plea that the offence against your daughter did not occur in the setting of any disinhibition brought about by any drug use.  There was no drug use.

47.In the matter I am dealing with, you still to some extent point to factors outside your immediate control.  Blaming, to an extent, these other things.  Walters, drugs, being trapped or controlled by another man.  Yes, you have accepted your legal responsibility.  Yes, you have pleaded guilty but in that regard, the strength of the case is of relevance.  Now I do not suggest for one moment that the benefits given to you by virtue of your early plea are affected by my conclusions as to the presence otherwise of remorse.  They are not.  They are quite separate matters and you get those benefits that I described a moment ago irrespective of whether you are remorseful or not.  But what is the state of play in relation to remorse here?  What am I satisfied of on the balance of probabilities?  A guilty plea is usually evidence of some remorse.  But that is not always the position and here, as I say, the case was overwhelming.  So, in such a setting, the inferences as to remorse which might sometimes be drawn from a guilty plea in a very weak case, they are harder to draw.  What else could you do in the face of those photographs and the related texts but plead guilty?

48.I have I am sure spent far too long on this topic.  I have some reservations as to the extent of remorse here and your counsel is not suggesting I should not hold them.  He after all was submitting that I should find some remorse.  He was not submitting it was complete/fulsome.  And it certainly is not.  Well why is it not? I do not know.  I will find the presence of some limited remorse arising from your guilty plea but it is far from complete here.  You are still to some extent minimising blame and I just do not know why, but you are.

Rehabilitation

49.

I turn now to your prospects of rehabilitation.  In a way much of what I have said a moment ago on the topic of remorse and the reports placed before me comes back into play on this topic.  You have committed a most serious crime here.  Not as some young or immature offender with youth on your side.  This was as a

49-year-old man.  A serious crime committed upon an unconscious woman in a most vulnerable state.  That crime coming within months of extreme sexual offending targeting your own nine-month-old child.  These things are not suggestive of a man with good prospects of rehabilitation at all.  They suggest to me a man with serious issues of deviancy.  I do not lose sight of your many years as a contributing, evidently normal member of the community.  It is true that you have no relevant prior criminal record but the events of 2015 were pretty incredible.  Your preparedness to commit extremely serious sexual offences against a nine-month-old child, your own child, and then against an unconscious woman several months later is quite some departure from that past good conduct.  Your preparedness to have it filmed on each occasion was again pretty unbelievable.  Why did you so act?  On that score, the two reports placed before me are of very limited value, Dr Lennings more so than Ms Ferrari’s.  They are each based to a large degree on what you say.  Your history.  Your account.  Your explanation.  Your justification.  How and why Dr Lennings’ report is relied upon in any way in this case is something of a mystery to me.  But your counsel not only points to it but relies on it and the risk assessments contained in that report.  Also the references to other risk assessments that are in that report.  Another court viewing that report found the absence of remorse and I am not at all surprised having read it myself.  It was completely unavoidable as a finding.  That other judge concluded there was significant minimisation and no remorse.  And a shifting of blame and avoidance of responsibility.  Though not doubting

Dr Lennings' expertise, the other judge discounted the opinions offered owing to the author’s reliance on your account.  More significantly though, you plainly did not give a full account to Dr Lennings and any of those others who were quoted in his report.  He reached his view as did those others including the various risk assessments, on the strength of that conduct being a once off which is of course the way you described it.  Well of course, we know it was not.  We do, but he did not.  You did not disclose to him the existence of the offending I am dealing with.  Or to Baker or to Nicholls who are quoted.  You also downplayed the seriousness of the offending against your daughter and engaged in a process of minimisation, something Dr Lennings seems not to recognise adequately.  His risk assessment is of no value at all in this case.  It was of minimal value in the other case.

50.Nor is Ms Ferrari’s much better.

51.A risk assessment is in the manner of an actuarial assessment, I suppose.  It is not some concrete predictor.  Ms Ferrari puts so much of your conduct down to disinhibition brought about by drugs.  I am just not able to accept that opinion.  So too do I have significant reservations as to remorse and I have already mentioned those.  There is significant minimisation in relation to the offending I am dealing with as well as the offences dealt with in NSW.  These were not truly impulsive offences or offences with disinhibition at their root.  So I do not accept her input in the assessment tool as to lack of minimisation.  It is surprising to me that she took that view but she did.  Well I do not.  

52.Though she knows something of the April offending, she is seemingly rating you only on the current offending and on the information presented to her based on your self-report to her, her clinical opinion and other information in the materials.  See paragraph 88.  It strikes me that the low risk value given to sexual deviation is unusual given the acts that I am awake to as well as the texts.  She says “There does not appear to be evidence of sexually deviant behaviour” (see paragraph 89).  Well we may have differing views on what that word deviant means.  It seems that we do.  It seems quite apparent that she did not have the full details of the other offending.  It is, if I may say so, frankly bizarre that she would not have had them.  She is being asked to give an opinion about this current offence but the details of the other offending is of obvious importance.  Maybe the word deviancy is a term of art when engaged by a psychologist to denote the absence of some paraphilic diagnosis, though I doubt that.  It is one of the inputs in the risk assessment itself.

53.She concludes that you do not have a paraphilic or sexual disorder as the incidents, plural, so she is referring to each of the matters, occurred under the influence of drugs.  They did not.  Possibly the offence I am dealing with did, but the other, a sexual offence against your nine-month-old daughter certainly did not.  Drugs had no role to play in that offence at all and yet there was just no explanation of that offence either (see paragraph 109).  In fact I do not believe there is anything resembling a real explanation of either of the sexual offences you have committed.  So what then do I make of your future risk?

54.So here, there is minimisation in relation to each sexual offence.  There is no rational explanation offered up by you and an absurd account provided to both experts as to the reasons for the serious sexual abuse of your daughter.  

55.What is recorded in paragraph 58 of Ms Ferrari’s report is an endeavour by you earlier this year to downplay the seriousness of what you had done to your daughter.  After the two of you had committed those atrocious crimes, you then stayed with this man and committed the offence I am dealing with and stayed with him beyond that point and still correspond with him.  Any reliance on disinhibition from drug use to explain the offending is not something I accept on the balance of probabilities.  I reject it (see 67).  Ms Ferrari says you are a low to moderate risk of sexual reoffending but that is completely conditional upon a number of things taking place.  Intensive treatment, no relationship with Walters and abstinence from drugs.  If any of those things does not fall into place your risk is “substantially increased” (see paragraph 112).  That risk assessment is also founded on the relationship dynamics and drug use as being the precipitating factors of your involvement in this type of offending, of which I have expressed my considerable doubt.  I do not accept it on the balance of probabilities.

56.You will be in prison for a long time.  The sentence you are serving and the sentence I will impose which will significantly add to your time in custody will surely have some role to play in deterring you into the future.  I suppose you may well have some treatment and do some programs.  I hope you do and I hope it is successful but you will need to desist with the current minimisation.  I cannot sensibly predict how that treatment will unfold.  I cannot act on your counsel’s suggestion that I should infer that you will respond favourably.  That is impossible for me to know, at this stage.  Maybe you will, maybe you will not.

57.I cannot put a tag or label on your warped sexuality but as I say the texts which you sent and the acts themselves upon your daughter and upon this victim speak of some deep-seated serious issues.  A preparedness to do dreadful things to vulnerable people.  That you will be much older when released gives me no great comfort as I have no real explanation for your conduct.  You were 49 when you committed the act I am dealing with and the other act for which you were previously sentenced.  This court deals with enough sexual offences committed by men much later in their lives.

58.You have no supports at all in the community.  No structure and you will be returning to an altered world after such a sizeable period in custody.

59.I do not believe you have reasonably good prospects.  I can only be quite guarded as to those prospects.  I will assess them as reasonable.  The submission that you are unlikely to reoffend upon release which was made is not actually supported by Ms Ferrari’s report and risk assessment.  Not at all.  That assessment is conditional upon a number of cards falling in the right direction.  Even if they do, you are a low/moderate risk of sexual reoffending.  But that risk would be far higher if the cards fell in the wrong direction.  It is impossible for me to quantify your future risk other than to say it is, in my judgment, sizeable enough.

COVID-19

60.Now your counsel explicitly disavowed any reliance on any increased custodial burden arising as a result of the COVID-19 virus.  You have been in Victoria since September and conditions in prison altered for the worse in response to the virus earlier this year.  I do not doubt  that the COVI- 19 virus and the response to it by those running the prisons has made prison a more stressful place.  It does tend to increase the burden of imprisonment.  No doubt there is much uncertainty as to what lies ahead and it is of course impossible to know precisely how the virus or the response to it by those running the prisons will play out in the months ahead.  There have been some lockdowns but your counsel did not take me to any aspect of your prison experience which had altered other than to say some courses and programs were not available to you.  Cessation of visits has had no impact upon you as sadly you have previously not received any visitors at all.  As I say, your counsel was not relying upon any increased burden by virtue of the COVID-19 virus.

61.Despite that concession though, I see no reason not to find that there is a slight increased custodial burden in your case for as long as the virus impacts upon the operations of prisons and for as long as you remain in Victoria.  That has been the position for the last few months as well and I take that into account but it is obviously not a large matter at all.

Reports of Ms Ferrari and Dr Lennings

62.I have already dealt with very many aspects of the two reports placed before me when dealing with the issue of remorse and the prospects of rehabilitation.  I have flagged many aspects that I will not act on.  What I need to make clear is that neither the report of Dr Lennings or that of Ms Ferrari is relied upon as giving rise to any Verdins factors or any reduction in culpability and that much was directly conceded by your counsel and correctly so.  There is no reduction in culpability at all here.  Still the reports are of some value in other areas such as your background and the treatment that you may need.  I take them into account with the many limitations I have addressed already.

General

63.I now make some general remarks.  I am required to take into account a number of matters including the maximum penalty and the impact of the crime.  The impact has been sizable as is conceded.

64.I am required to take into account current sentencing practices.  Current sentencing practices are but one factor.  They are not a controlling factor.  I have looked at the Sentencing Advisory Council Snapshot No. 230 of May 2019 for the crime of rape.  

65.I have looked also at the new Judicial College of Victoria sentencing case collection of sentences for the crime of rape (Court of Appeal overview 3.1.1.1)  and matters of principle set out in some of the cases including the case of Jurj [2016] VSCA 57 to which I was referred.

66.Statistics have inherent limitations.  They say nothing about the individual features of the cases represented by those statistics.  They say nothing about the particular offender or the particular crime.  Nothing about the nature of the penetration.  Nothing about any aspect of vulnerability.  Nothing about remorse or plea or extent of planning or impact.  Nothing about prospects of rehabilitation.  They are completely silent as to the whole range features of aggravation or mitigation or background which are, after all, the very things which will determine the given sentence.

67.There can be some benefit in looking at comparable cases.  Dr Fitzgerald was going to take me to some other instances of sentences imposed for rape.  I asked him if any were comparable cases and he said that they were not and so he left that fruitless exercise well alone.  I could not find a comparable case.

68.Other cases have significant limitations.  Even comparable cases.  They do not stand as precedents, to be followed unless distinguished.  They are not precedents at all.  They merely represent other occasions on which another judge has passed sentence upon another offender for another crime.  There is no such thing as one correct sentence and another judge in any other cases could have passed a higher or lower penalty and been entirely within his or her rights.

69.There are also almost always a range of differences as to the crime and the offender.  There will be differing relationships, forms of penetration, duration and impact.  Differences in virtually every area including the presence or otherwise of remorse, aspects of vulnerability, the assessment of rehabilitative prospects, whether someone pleaded guilty or not, if so, the stage of the plea and the nature of any relevant criminal history.  There will always be a host of different matters in mitigation and aggravation.

70.I have to pass an appropriate sentence in your case and my task is not controlled  by what has happened to other offenders in other cases, or by what the statistics may disclose or by what has most commonly been done in the past. 

71.I do not know why your counsel thought it appropriate to describe your sentence in the following way:  “ the accused’s current sentence is by any measure a very substantial one--it is longer that any sentence imposed in this State for manslaughter”.  Firstly that is not right factually.  I was pretty confident Justice Nettle tucked someone away for 15 years and my check confirms that fact.  See R v AB [2006] VSCA 96. That manslaughter sentence survived in the Court of Appeal. Secondly and far more importantly, sentences imposed for manslaughter are totally irrelevant to my task. Manslaughter has got nothing to do with this crime or the crime for which you have previously been sentenced. Manslaughter has a 20-year maximum term and very often will be committed without any direct intention at all. An unlawful and dangerous act , a single punch and an awkward fall down onto the ground will do the trick. Of course it has the tragedy of a death but often nothing like the culpability of your crime which was dealt with in NSW. I do not understand why it was referred to in this way other than perhaps to imply that ‘you got more than your just deserts’ up in NSW.  Your counsel assured me that he merely raised the issue of manslaughter to remind me that you were serving a large sentence.  If that be so, I fail to understand the need to refer to manslaughter.  I know 13 years eight months with a NPP of 10 years three months is a lengthy period in custody without mentioning another crime of no relevance to the one’s that you have been sentenced for.

72.The sentences passed for manslaughter have no role to play at all in my task or the task of the NSW District Court Judge.  None.  That portion of the submissions was of no value and really should not have been made.

73.I have to take into account the various purposes of sentencing.

74.Rehabilitation is one of the purposes of sentencing and I have already pronounced my finding in that regard.  I do not accept your counsel’s submissions that you have reasonably good prospects or that you are unlikely to re-offend.  I do not accept his suggestion of risk placed before me.  I can only be quite guarded in this case owing to the seriousness of this offence and the seriousness of the conduct occurring in April of the same year targeting your own daughter.  You present a sizeable enough risk of reoffending.  I believe that you have reasonable prospects of rehabilitation.  Rehabilitation must in this case surrender some significant ground to some of the other purposes of sentencing including denunciation, specific and general deterrence, community protection and punishment.

75.Punishment is obviously of importance.  I must punish you justly and proportionately for this serious crime.

76.I must also denounce your conduct.  That is an important purpose of sentencing.  What a serious and disgraceful piece of conduct to treat a vulnerable woman in this way.  It was a very serious criminal offence to act as you did and you should be totally ashamed.  You are not as ashamed as you should be.  There is still an issue with minimisation and insight.  You have a problem processing the seriousness of your conduct.  I do not know why you do.  You just do.  Maybe it is the same part of your make up that permitted you to commit such crimes as you have committed that impedes full remorse or insight.

77.Even without the impact of the serious offender provisions here, community protection would be an important purpose of sentencing. However, courtesy of those provisions set out in s.6D (a) of the Sentencing Act, it is the principal purpose of sentencing.  You are in fact, a serious sexual offender.  Now, some people fall foul of those provisions and yet in a setting where there is a very low risk or re-offence.  With a number of charges in a tight grouping perhaps even committed on the one occasion.  The serious offender provisions do not discriminate between episodes.  They are triggered for the third act even the third of a number of acts occurring minutes apart on the same date.  Then there are people like you.  You are quite different.  You are correctly badged up as a serious sexual offender.  That is exactly what you are.

78.Under s.6E of these provisions, unless I otherwise direct, the sentence passed upon you by me would be served cumulatively upon your existing sentence.

79.I have mentioned the primacy of community protection.  The court has available under these provisions (s.6D(b)) the power to impose a disproportionate sentence to achieve that purpose.  That course is not urged upon me here and I have never used that provision for as long as I have sat as a judge and will not do so here.

80.However, I am not free to ignore the serious offender provisions.  I must give them due weight.  The rule as to cumulation has an evident object and one that is not to be defeated merely by a routine exercise of the discretion to direct otherwise.  That would amount to maintaining the presumption of concurrency.  To do that as a default would be to undermine a clear legislative policy which deliberately removes that presumption of concurrency.  These provisions give effect to the legislative will that "serious offenders" are in a special category of offenders.  See the cases of Beyer v R [2011] VSCA 15 , R v RHMC [2000] 203 CLR 452. See also HPW [2011] VSCA 88 , Hopson [2016] VSCA 303, Gordon  [2013] VSAC 343 and Zhao [2018] VSCA 267. (para 89 to 100)

81.These provisions do not oust or jettison the principle of totality.  It is clear from the case law that I still must pay regard to the principles of totality, but equally clear that those principles are deliberately modified by this rule.

82.Specific deterrence is also an important sentencing purpose for the reasons I have advanced.  The chronology and detail of the offending and your texts are all disturbing.  You must be strongly deterred from any future offending.  There is no reduction in your culpability at all here.  Being disinhibited by drugs is in no way mitigatory and nor do I accept it is the explanation behind the offending.

83.General deterrence is a powerful sentencing purpose in the setting of a serious sexual offence committed upon a vulnerable woman as this one was.  It is of real importance here.

84.The courts must endeavour to deter other people in the community who might be minded to commit this type of serious sexual offence.  I must signal very clearly to likeminded potential offenders that this sort of serious sexual crime will be met by condign punishment when brought before the court.  That message may hopefully dissuade others from doing as you have done and taking advantage of such vulnerable settings.

85.I have to pay regard to the gravity of the offence before the court.  It is a charge of rape.  Rape is inherently a serious offence.  It is a crime of violence.  Here it was the rape of a vulnerable individual in your home.  She was substance affected and known to be so by you.  She was for all intents and purposes unconscious.  She could have no say in your conduct as you well knew.  It was a demeaning, invasive and depraved piece of conduct and plainly had a degree of planning.  It was not truly impulsive or spontaneous.  You counsel whilst accepting that there was some forethought or planning suggested it was to a degree opportunistic.  Is there no limit to the situations said to be embraced by that word?  It is a pretty strained use of that word here.  Dr Fitzgerald signalled that he meant by the use of that word that you can be distinguished from someone purposively kidnapping a person off the street with sexual crimes on their mind.  Well, of course you can be so distinguished from such a person.  I am not dealing with you for doing that.  But you had a number of steps to perform and each step gave you the chance to consider what you were doing, to consider the indecency, the nastiness, the inappropriateness of what you were doing, but if not that, at least the seriousness of the crime that you had in contemplation.  Yet you persisted.  You undressed her and your acts must have been contemplated as you went about that task.  At the end you re-dressed her, no doubt to hide your conduct.  You had your sick offsider on deck to photograph your crime.  A rape being captured on still film.  What an awful mindset.  What a pair you were.  But it is you who falls to be sentenced for this crime.

86.Her past consensual acts are irrelevant to this act.  Your counsel concedes she was being treated as a chattel.  It is accepted that the presence of Walters is an aggravating feature, so too the photography but not the transmission of images.  She was neither consenting to the sexual conduct nor to it being captured on film.  Your counsel, as is far too common in pleas conducted before this court, points to matters of aggravation which were absent.  The absence for instance of a long duration.  Who knows how long this event took place?  The absence of a protracted ordeal whilst conscious.  Instead we have the shock of discovery of the event years down the track.  The absence of force or intimidation.  She was violated as she lay helpless before you.  The absence of pain or injury or risk of disease or of pregnancy.  

87.Well it is a common approach on a plea to set up some template of a crime with all those aggravating features present and then compare that hypothetical extreme example with the crime before the court as though to suggest that the absence of some of the aggravating features is a matter in mitigation.  It is not.  The absence of force or intimidation arises from her complete and total vulnerability.

88.You had a victim who trusted you sufficiently to tell you about the deepness of her unconscious state and the need to take care of her in such a state.  You raped her in such a setting and it was photographed by another who you knew was present and observing the act.  These are very large aggravating features.  The absence of other some features of aggravation says nothing as to the seriousness of the crime when there are as many other features of aggravation present, as there are in this case.

89.Your victim was totally defenceless and vulnerable.  It defies belief that anyone could do as you did.  Your counsel suggested that it was a relatively serious example of the crime of rape.  He started talking about where it might be plotted on some “axis” of offending.  It made me think of the precision which applies in the field of mathematics, a field where I certainly did not excel.  I am not a mathematician.  That precision of plotting a crime onto a piece of finely ruled up graph paper with a very sharp pointed pencil, that is not my sentencing task.  It is impossible to descend to that level of precision.  I am exercising a sentencing discretion and though we often enough employ adjectives to describe offending, so high, low, mid-range, that has often enough been discouraged by the Court of Appeal in this State.

90.So, we move from those adjectives to describe instead where a crime might fall on a spectrum of offence seriousness, and then we have submissions such as the ones made to me suggesting there is that mathematical ability and precision. Well, of course there is not.

91.I do though have to take into account the nature and the gravity of your offending.  How do I assess it?  Your counsel suggests it is a relatively serious example of the crime of rape.  I agree up to a point.  I am content to drop the term ‘relatively”.  I judge this to be a serious example of the crime of rape, a crime that is inherently serious and has a 25-year maximum prison term applicable to it.  It is not up in the worst case of offending, a phrase itself disapproved of by the High Court but as the High Court stressed in R v Kilic [2016] HCA 48, worst case offending is deserving of a penalty close to the maximum. That is 25 years here. Here there many matters in aggravation and only a handful of matters in mitigation, the chief matter of course being your early guilty plea.

Totality

92.Your counsel conceded the inevitability of a term of imprisonment, a level of cumulation and a new single non-parole period being fixed. He urges me to pay regard to the principle of totality and not to impose a crushing sentence. To pay regard to the features of commonality. There are virtually none. They occurred in the same year. So what? That Walters was at both is not a significant feature at all. I have taken a last look at the effect of my sentence and its relationship to the other matter you are currently undergoing to ensure that the overall outcome is consistent with your overall criminality and not crushing upon you. Your criminality was very high here. I must and do pay regard to totality though as I said earlier, it is modified here by reason of your status as a serious sexual offender. It is sometimes said that one way of viewing totality in the setting of sentences passed at different times is to consider what would have befallen the offender had they been sentenced at the same time by the same judge for all of the offences. Well, the answer is obvious. You necessarily would have fared far worse. You would have received a significantly greater head sentence and a significantly greater non-parole period, as they were separate serious sexual offences against two quite separate victims at quite separate times, in different states. Very sizeable cumulation would have been required quite independent of the impact of s.6E of the Sentencing Act.  This was no course of conduct.  This was not some extra act amongst many in a tight time frame.  This was not some single episode which would be deserving of significant concurrency.  Indeed, as I say, these were two quite separate incursions into serious criminal conduct and the question might be posed in such a setting as that, why should there be some measure of concurrency?  Well, the answer is that the strict logic that might seem to demand cumulation for unconnected offences is in fact tempered by this principle of totality.  See Fox and Freiberg’s Sentencing, 3^rd edition (page 795 para [13.80]). 

93.Here though, I have s.6E modifying the principle of totality and I have already referred to the cases dealing with the tensions created by that provision. I am not dealing with a multi charge indictment with a number of offences against the same victim all committed in a single episode or tight time frame, which absent s.6E, would justify sizeable concurrency and which even in the face of that provision, would still require sizeable enough concurrency to mark out the true episodic nature of that style of offending. That sort of transactional consideration will always tend to greater concurrency whether s.6E applies or not. See Zhao at paragraph [100]. I am dealing with a totally separate serious crime. It was committed upon a totally separate victim with separate impact. All of these matters of culpability, all of the matters of aggravation arising seven months after the very serious crime which gives rise to your current sentence. If all the offences were dealt with at once plainly you would have done far worse but the NSW District Court, in the absence of a provision equating to s.6E would have been required to give normal weight to the principle of totality. It is modified in my task owing to those past crimes. I cannot ignore s.6E.

94.One is always conscious of the need to avoid a crushing outcome but I must pass an appropriate sentence.  There must be a very substantial level of cumulation for the reasons I have advanced.  That is inescapable here.  To put it correctly, I must ‘otherwise direct’ to order far more modest concurrency here than would be the position had there been a single episode of offending.  When I consider your overall criminality, it was very high indeed. 

95.I will pass sentence now.  I will have you remain seated.  There is only once charge before me.

Sentence

96.On Charge 1, charge of rape, I convict and sentence you to 8 ½ years' imprisonment.

Sentenced as a serious sexual offender and otherwise direct 6 E

97.I have sentenced you as a serious sexual offender and unless I otherwise direct, the total sentence imposed will be served cumulatively upon your existing sentence.  I direct then that 3 years of this sentence will be served concurrently with the existing sentence. That is the extent to which I otherwise direct under s.6E.

TES

98.It follows then that 5 ½ years of this sentence will be served cumulatively upon the sentence which was imposed in the NSW District Court on 11 May 2018 and which was then confirmed on appeal in the NSWCCA on 18 May 2020.  That results then in a TES of 19 years 2 months.

Non Parole Period

99.

You have been undergoing that NSW sentence since it was imposed on

11 May 2018. Now, of course you get the benefit of the time that you have already served in relation to that period. I have no period of PSD to declare accordingly. But I must, pursuant to s.14 of the Sentencing Act, fix a new single non-parole period.  That is brought into play by virtue of your being transferred to this State under the Prisoners (Interstate Transfer)  Act 1983. See s.27 of that Act and R v WMR [2005] VSCA 2005.

100.What is critical is I make it clear when it is that the new single non-parole period commences.  There are two ways of doing this, either backdating it to the date of the NSW District Court sentence or commencing it from today's date and making the necessary allowances for the time you have served already.  Now, I am awake to the views expressed by Brooking J in the case of R v Rich(No 2) [2002] VSCA 0017. He took the strong view that uniformity was desirable and that the new single non-parole period should commence on the day it is actually fixed, which would be today. I have adopted that approach in the past in a number of cases and I have then run into very sizeable problems with the interpretation of the order by the authorities and in a setting where I have not been dealing with the problems that may, I say may, be faced with interpretation should it so happen that you are transferred back to NSW. I make no assumption that you will be transferred back by the way. You believe you are here to stay. You wish to stay in Victoria. I have no reason to doubt that you will remain here. It is just that it is not entirely clear to me how the authorities will view s.20 of the Prisoners (Interstate Transfer) Act1983.  You may well need to make an application and one can never know how that will be received.

101.As I say though, when I have adhered to the form of order recommended by Justice Brooking, there have invariably been great difficulties in the past as to the interpretation of the order.  I do not know why that has occurred.  It just has.

102.What is important is that there is certainty as to when the new single NPP commences.  I will provide that in these reasons.

103.Pursuant to s.14 of the Sentencing Act I fix a new single NPP.  That will be a new single NPP of 15 years 3 months commencing as of the 11 May 2018 which was the date of the sentence imposed in the NSW District Court.  Of course you will get the credit for the pre-sentence detention.  There is no need for me to say anything about that.

104.In other words I have cumulated 5 ½  years on top of the head sentence of 13 years 8 months resulting in a TES of 19 years 2 months.  I have cumulated  5  years to your minimum term by fixing that new single NPP of 15 year 3 months.  Previously it was 10 years 3 months.

Section 18 PSD

105.There is no PSD to declare.

Disposal

106.There is an application made for a disposal order under the provisions of s.78(1) of the Confiscation Act 1997. That order is not opposed. I have signed that order and the items referred to in the schedule will be maintained in the manner contemplated by the signed order.

6AAA

107.I have taken into account your guilty plea.  Had you pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for 11 ½ years.  I would have cumulated 8 ½ years reaching a head sentence of 22 years 2 months and fixed a new single non-parole period of 18 years 3 months.  That declaration is to be entered into the records of the court pursuant to s.6AAA.

Sex  Offenders  Registration  Act 2004

108.There has been application brough before me today for you to be dealt with under the provisions of the Sex Offender Registration Act. 

109.Firstly, it was argued, there was some basis for me to be making some sort of declaration as to you being a registrable offender for this one offence that I am dealing with and then some pronouncement as to the fact that that would then generate a lifetime reporting obligation. 

110.Those matters are set out in paragraphs [2] to [5] of the prosecution’s supplementary submissions.  I do not accept the statutory basis that is set out there.  I think it misconstrues the impact of s.34(4) of the Act.

111.This offence is an item 3 or schedule 3 offence, committed as it was, against an adult.  There is no question of there being any sort of automatic registration here as would apply if this was a class 1 or class 2 offence.  So, I do not believe that the avenues to lifetime registration as set out in paragraphs 1 to 5 are made out at all.

112.The provision relied upon s.34(4) is in fact the provision that sets out the period of liability under the order should there be a successful application made for a sex offender registration order.

113.Alternatively, though, the prosecutor argues that I should make a sex offender registration order under those provisions.  That application is opposed but there is not a lot said by way of opposition.  It is not a matter that is preying on your mind and that is the way your counsel dealt with it really.  But I have got to actually be satisfied it is appropriate to make the order under s.11, that is that you be registered under the Act.

114.As I say, this is not an automatic application as sometimes exists in the setting of a sexual offence committed upon young persons. This crime was committed upon an adult.

115.There is a discretion, vested in the court in some circumstances to make an order compelling compliance with the reporting obligations under the Act even for a crime committed upon an adult.  Rape is a class 3 offence.  When regard is had to your NSW offending which are class 1 offences but will be treated as a single such offence as they occurred in a 24-hour period, the period would be life, if I made this order.  That is because a class 3 offence is deemed for the purposes of such a registration order as a class 1 offence.  See s.34(4)(a).  You would then have two such class one offences.  Hence lifetime reporting obligations.  There is no issue taken with that actual calculation.

116.But a precondition to the making of this order is my being satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community.  It is not necessary that the court be able to identify a risk to particular people or a particular class of people. 

117.I have considered before coming onto the Bench some of authorities including the case of R v Chan [2006] VSCA 125.

118.I have considered the extent of any risk posed by you.  To make such an order, the risk must be greater than some theoretical or remote risk.  I have no doubt that you pose a significant enough risk.  However, I am told that there exists already that corresponding obligation picked up by this Act which requires you to comply with your reporting obligations for the period of 15 years following your release from custody.  I can make no assumptions as to your being released on parole but I know that you cannot be released before the end of the non-parole period.  That is your earliest release date and you would be about 65 years of age or so in 2031, if released then.  You would then be required to report under the Act or the NSW equivalent for 15 years from that point.  In my view that makes it unnecessary to make this order.  Though there would be I think the risk sufficient to make the order, I judge there to be no real utility in doing so given your age upon release at the earliest and the existence of the very obligations independent of the making of this order.  I am not satisfied the order is justified in such a setting and I decline to make it.

119.Let me see if there are any other matters that I need to deal with.

120.Does everyone understand the nature of the sentence and the - I have structured the sentence by expressing a measure of concurrency but that of course discloses the amount of cumulation.  Are there any matters arising out of my remarks at all?  No matters, Ms James?

121.DR FIZGERALD:  (Indistinct words) that was very clear.

122.HIS HONOUR:  Right, no matters, Ms James?

123.MS JAMES:  Yes, Your Honour, am - I am not sure if this is appropriate to raise at this time so please decline to respond if that is not appropriate.  But is Your Honour, just to clarify, considering under the rubric of risk to sexual safety that the necessity of making an order longer than 15 years of reporting, to be unnecessary as a factor going to a risk of sexual safety or is that a separate consideration in Your Honour's mind.

124.HIS HONOUR:  I am not going to engage in this.  The fact is these matters should have been spelt out very directly to me when the plea was conducted earlier this week.  I have got a link that we are losing forever in about 3 minutes from now.  I am sure my remarks in relation to the Sex Offender Registration Act will be - have all the hallmarks of being delivered without the ability to spend a significant amount of time considering the arguments given that the arguments were not delivered to me until earlier this morning in the face of coming onto the bench to pass sentence.  I have said what I have said.  I am saying no more.  I decline to make the order.  I have a discretion under those provisions to make one and I decline to make one in these circumstances for the reasons that I have advanced.  Any other matters at all?

125.MS JAMES:  No, (indistinct words) I could just indicate that my instructor did file those submissions last night but it was at a later point, Your Honour.

126.HIS HONOUR:  Yes.  Sorry, I understand.  Well, perhaps I have betrayed the fact that I have left the building by then but - anyway, look, I have said what I have said.  There is a significant period where he is covered by the provisions upon his earliest release and he may not be released at that time of course.  I can make no assumptions about that.  All right, well, look, Doctor, you will be obviously in touch with your client to discuss the ramifications of the sentence.

127.DR FIZGERALD:  Yes, Your Honour.

128.HIS HONOUR:  That completes the matter then.  What I will do is I will sign the formal orders in a moment but I will not have you all sitting there doing that.  I will disconnect the link at this stage then, thank you.

129.DR FIZGERALD:  As Your Honour pleases.

130.MS JAMES:  As Your Honour pleases.

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