Director of Public Prosecutions v Lawson
[2023] VCC 1986
•27 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-21-00776
Indictment No. M10114231
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROHNE JAI UGLE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 30 August 2023 | |
DATE OF SENTENCE: | 27 October 2023 | |
CASE MAY BE CITED AS: | DPP v Ugle | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1986 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – charged with three acts of rape – jury found the accused guilty of Charges 2 and 3 and not guilty of Charge 1 – youthful offender – delay – application of Verdins’ principles – circumstances leading up to the offending – good character.
Legislation Cited: Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2018); s38(1), s38(3); Sentencing Amendment (Sentencing Standards) Act 2017; Sentencing Act 1991, s3(1), s5(2G) and s5(2GA); s5B, s11A; Sexual Offenders Registration Act 2004, s3, s5(1), s6(4) s7(1)(a), s33
Cases Cited:Cheung v R (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWLR 37; R v Browne [2018] VSC 742; Browne v R [2019] VSCA 286; Muldrock v R (2011) 244 CLR 120; Lugo (a pseudonym v R) [2020] VSCA 75; HoangDung Tran v R [2011] VSCA 383; Ryan v R (2001) 206 CLR 267, Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201; DPP v Mobb [2023] VSCA 148; R v Rouse [2010] VSC 370; Tones v R [2017] VSCA 118; Thomas v R [2019] VSCA 323; R v Nikodjevic [2004] VSCA 222; R v Merrit, Piggott & Ferrari (2000) 14 VR 392; Jurj v R; DPP v Jurg; DPP v Miftode; Miftode v R [2016] VSCA 56; Browne v R [2020] VSCA 204; R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Balshaw v R [2021] VSCA 78; Tones v R [2017] VSCA 118; R v Nikodjevic [2004] VSCA 222; R v Merrett, Piggott & Ferrari (2014) 14 VR 392; R v Miceli [1998] 4 VR 588; R v Rau [2010] VSC 370; Markovic v R; Pantelic v R (2010) 30 VR 589; Director of Public Prosecutions (“DPP”) v Hill (A Pseudonym)
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr H Rattray | Slades & Parsons |
HIS HONOUR:
1Pursuant to Indictment M10114231, you were charged with three counts of rape, in that you, at Hawthorn on 21 January 2020, raped ABC (“the complainant”),[1] by sexually penetrating her by introducing your penis into her mouth (Charge 1), her anus (Charge 2) and her vagina (Charge 3), without her consent, in circumstances where you did not reasonably believe that she consented to such penetration.
[1]The name of the complainant has been anonymised.
2You stood your trial, which commenced on 3 August 2023, with the evidence being completed on 16 August 2023. The jury commenced its deliberations on 17 August 2023 and on 18 August 2023, the jury of twelve returned unanimous verdicts of guilty on Charges 2 and 3 and not guilty on Charge 1.
3Each charge of rape is contrary to s38 of the Crimes Act 1958, with the maximum penalty being Level 2 imprisonment, with a maximum of twenty-five years.
4The offence of rape is also subject to the Standard Sentencing Scheme, which was introduced by the Sentencing Amendment (Sentencing Standards) Act 2017. That Act introduced standard sentencing for various serious offences committed in or after February 2018 (see s5A and s5B of the Sentencing Act 1991). Section 38(3) of the Crimes Act 1958, provides that the standard sentence for the offence of rape is ten years.
5Furthermore, s3 of the Sentencing Act 1991 defines a “Category 1 offence” to include the offence of rape set out under s38(1) of the Crimes Act 1958. Section 5(2G) of the Sentencing Act 1991 directs that, subject to s5(2GA), in sentencing an offender for a Category 1 offence, a court must make an order pursuant to Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44 of the Sentencing Act 1991).
6Your counsel disclaimed any reliance on any exception and, accordingly, you must be sentenced to a period of imprisonment – not being a sentence of imprisonment in addition to making a community correction order in accordance with s44 of the Sentencing Act 1991.
7Given the nature of your offending, you are also subject to the provisions of the Sex Offenders Registration Act 2004 (“SORA”). It is common ground that the two offences of which you have been found guilty are Class 1 offences under the SORA legislation. As the offences arise from the same incident, they are treated as a single offence, pursuant to s34(1A)(3)(a) of the SORA legislation. Accordingly, pursuant to s34(1)(b)(i) of the SORA legislation, you will be registered as a sexual offender, with the mandatory reporting period being fifteen years.
Chronology of relevant events
· 21 January 2020 – date of subject offending.
· 14 January 2021 – record of interview.
· 22 January 2021 – filing hearing.
· 5 March 2021 – service of hand-up brief.
· 16 April 2021 – committal mention.
· 18 May 2021 – IDH (adjourned by motion of court).
· 16 June 2021 – IDH (hearing vacated – relisted in July).
· 13 July 2021 – IDH (s198A applications granted).
· 30 September 2021 – extension of time granted – no parties required to attend.
· 7 October 2021 – s198A hearing vacated and adjourned.
· 12 October 2021 – ground rules and special hearings vacated.
· 8 November 2021 – s198A hearing proceeded and adjourned because a witness from Western Australia could not be contacted.
· 12 November 2021 – ground rules and special hearing vacated.
· 19 November 2021 – mention adjourned for special hearing and further s198A hearing.
· 2 December 2021 – s198A hearing (adjourned because of witness’s non-attendance).
· 24 January 2022 – mention.
· 2 February 2022 – mention (still issues with Western Australian witnesses).
· 22 February 2022 – s198A hearing (issues with Western Australian witnesses) – police filled out endorsement incorrectly and judge could not issue warrant and matter adjourned.
· 28 February 2022 – ground rules and special hearing vacated due to prosecution not being ready to proceed. Hearings were relisted.
· 10 March 2022 – mention.
· 25 May 2022 – s198A hearing, Western Australian witnesses attend the Melbourne County Court in person.
· 11 and 12 July 2022 – special hearing (for complainant) and ground rules hearing – adjourned.
· 8 November 2022 – trial date vacated.
· 5 December 2022 – first trial before his Honour Judge Wraight – jury discharged due to a witness giving a prejudicial answer.
· 27 March 2023 – second trial before his Honour Judge Wraight – jury discharged due inappropriate conduct of jurors.
· 3 August 2023 – third trial before his Honour Judge Parrish commences.
· 18 August 2023 – jury verdicts.
· 30 August 2023 – plea hearing.
Sentencing principles following a jury verdict of guilt
8I refer to the High Court decision of Cheung v R (2001) 209 CLR 1, wherein the Court set out the principles relevant to a sentencing judge following verdicts of guilty in a jury trial. In particular, I refer to the judgment of Gleeson CJ, Gummow and Hayne JJ, wherein they state in part:
“When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment, and by the plea. If the accused is found guilty, then it is the responsibility of the judge to determine the appropriate sentence. That will normally involve a discretionary decision, subject to any statutory constraints such as a specified maximum penalty
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. … But the issues resolved by the jury’s verdict may not include some matters of potential importance to an assessment of the offender’s culpability. That is not unusual. It is commonplace.
…
It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury’s verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.” (Cheung v R (op cit) at paragraphs [4]-[5] and [7])
9Later, the High Court referred to various principles with approval, in the decision of R v Isaacs (1997) 41 NSWLR 37, which summarised certain well-established principles concerning the law and practice of sentencing in New South Wales. One of those well-established principles was that:
“…
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury . . .
… .” (Cheung v R (op cit) at paragraph [14])
10Later in their decision, the court stated that, in relation to such principle, the High Court went on to state:
“As to [the above] proposition … the required consistency is with the verdict, that is, the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.” (Cheung v R (op cit) at paragraph [17]).
11The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of an offence charged, is for the sentencing judge.
12The elements of the offence of rape are:
(a) the accused intentionally penetrated the complainant;
(b) the complainant did not consent to such penetration; and
(c) the accused did not reasonably believe that the complainant was consenting to the penetration.
13Your counsel, in the Defence Response at the commencement of the trial, stated that there was no issue that you sexually penetrated the mouth of the complainant (Charge 1) and the vagina of the complainant (Charge 3). You denied any penetration of the anus of the complainant. Furthermore, again through your counsel, it was stated that, in relation to the circumstances surrounding the first allegation of rape – that is, you penetrated the mouth of the complainant with your penis ꟷ such act was consensual. In relation to the vaginal penetration, your counsel stated that you had a reasonable belief that the complainant was consenting to the penetration.
14Obviously enough, the jury was satisfied that each of the elements were satisfied for Charges 2 and 3. Bearing in mind your admission that you penetrated the mouth of the complainant in Charge 1, the jury was not satisfied beyond reasonable doubt that either the complainant did not consent to such penetration, or that you did not reasonably believe that she was consenting to such penetration.
Circumstances of the offending
15The complainant, who was born in 2003, at the time of the offending was sixteen years old, having just completed Year 11 at school. You were born in November 1999, and at the time of offending were twenty years old. Prior to the night involving the offending, you were not known to the complainant.
16The complainant arranged to have a girls’ night sleepover with some of her school friends at her grandmother’s apartment. Her grandmother spent considerable time interstate and the apartment was empty. I refer to exhibits 1, 2, 3 and 4 which, respectively, consist of a bundle of twenty-four photographs taken of various aspects of the unit; a RT Edgar house plan, a handwritten diagram made by the complainant for the police and the RT Edgar house plan marked with the TV drawn by the complainant. The complainant’s mother gave the complainant permission to post the gathering – what was generally referred to as the “GATH”, on the condition there were no boys and no alcohol.
17The complainant invited several of her female school friends. They consisted of GF1, GF2, GF3, GF4 and GF5. The mother of the complainant drove her to the apartment at about 4.00pm and GF3 and GF4 arrived a short time later. Together, with those friends, the complainant walked to Swinburne University, where they met GF1 and went and bought food and alcohol (a mix of drinks), returning to the apartment at about 6.00pm.
18GF5 arrived later, having driven to the apartment, and she brought a bottle of Vodka with her. All the girls, except GF1, started drinking, and GF5 arranged to pick up her boyfriend, BF1, from the train station. GF5, GF4, and the complainant, walked to the Auburn Railway Station to meet BF1and two of his friends. The friends of BF1 were you and BF2. These males brought two boxes of alcoholic drinks, Canadian Club cruisers and beer.[2] The complainant had not met you before.
[2]The names of the girlfriends and various boys who attended have been anonymised.
19When the group returned to the apartment they socialised and drank. You offered the complainant Vodka cruisers that you had brought to the apartment and the complainant had one or two of them.
20The complainant was feeling drunk and was wanting to get some food. You, accompanied by GF5, BF1, BF2 and the complainant, went to McDonalds, purchased some food, and afterwards returned to the apartment and continued socialising.
21Later in the evening, the complainant felt hot and wanted to change out of her jeans and into a skirt, and asked GF5 help her to find her skirt. The complainant went into the bathroom adjoining the bedroom on the first floor to get changed. Such bathroom had a door into the bedroom and a door into the hallway. You entered the bathroom from the hallway door and at the request of the complainant assisted her doing up her dress.
22I now refer to the evidence-in-chief of the complainant in relation to the rapes, and also her evidence in relation to when you penetrated the mouth of the complainant. Such evidence is to be found at Transcript 38, L28 – T47, L20.
Q: “So you go into the bathroom. Have you got your skirt with you?‑‑‑
A: Yes.
Q:What do you do?‑‑‑
A:I call out to [GF5] to come back and help me because I realise I can't do it myself once I've taken my jeans off. And then I start trying to do it myself and Trohne comes in.
Q:When you say Trohne comes in?‑‑‑
A:Yes.
Q:Which door does he come through?‑‑‑
A:The hallway one.
Q:That's the sliding one?‑‑‑
A:The one I thought was locked, yes.
Q:Was it closed when you went in there or open or partially closed or partially open?‑‑‑
A:It was closed.
Q:So he comes in and at what state of dress or undress were you at that stage?‑‑‑
A:I was – the skirt was maybe I'd done one button by myself, and I still had my black top on. But my jeans were off, and I was trying to put on the skirt.
Q:So whereabouts was your skirt as far on your body?‑‑‑
A:It was around my waist, and I was holding it together.
Q:When Trohne comes in, was there any conversation?‑‑‑
A:I said, ‘Shit.’ And I tried to cover myself up as much as I could.
Q:Do you say anything else to him?‑‑‑
A:I asked if he could help me because [GF5] wasn't coming.
Q:What does he do?‑‑‑
A:He doesn't help. He closes the door behind him.
Q:Closes the door behind him, and then what happens?‑‑‑
A:Um, he pushes me down on the toilet.
Q:Was the seat up or down on the toilet?‑‑‑
A:The seat was down.
Q:Where is your skirt at this stage?‑‑‑
A:It's on the floor.
Q:How did it get on the floor?‑‑‑
A:Buttons were undone, so.
Q:How many of them had been done up before Mr Ugly - Ugle came into the bathroom?‑‑‑
A:I don't think any were done up. Maybe one was done half up, but the minute he pushed me onto the seat they - the dress - the skirt came down.
Q:And when you're on the toilet with the lid down, how was your body positioned?‑‑‑
A:I was sitting, just on - on it. Looking at him.
Q:Was there any conversation between the two of you at that stage?‑‑‑
A:No.
Q:So you're sitting on the toilet. Whereabouts - how far away from you was Mr Ugle?‑‑‑
A:He was right in front of me.
Q:When you say right in front of you, are you able to give an estimate of the distance?‑‑‑
A:He was just standing, like, right in front of me, (witness demonstrates).
Q:The witness has held out her arm. Was that like inches away, feet away?‑‑‑
A:Maybe two ‑ ‑ ‑
HIS HONOUR:
Centimetres we use now.
MS PIGGOTT:
Q: Sorry, Your Honour. Centimetres away?‑‑‑
A: Probably centimetres.
Q: Approximately how many?‑‑‑
A: Maybe 20.
Q:All right. So you're sitting on there, and was - how was Mr Ugle positioned when you're sitting initially on the toilet there?‑‑‑
A:He was just standing straight up. Above. Like, right in front of me (witness demonstrates).
Q: How were you feeling at that stage?‑‑‑
A: Anxious. And scared.
Q: Why were you anxious?‑‑‑
A: I didn't know what was going to happen.
Q: Why were you scared?‑‑‑
A: Because I just wanted to put my skirt on.
Q: So, Mr Ugle is standing in front of you?‑‑‑
A: Yeah.
Q: Does he stay standing in front of you?‑‑‑
A: Um, yes.
Q: Where were his hands?‑‑‑
A: Um, he put them on his pants to take them off.
Q: When you said you were moved to the toilet seat ‑ ‑ ‑
MR RATTRAY:
Objection, Your Honour. She said she was pushed.
MS PIGGOTT:
Q:Pushed. Okay, pushed. Sorry. When you were pushed to the toilet seat, how much force was used?‑‑‑
A:Enough to get me on the seat but it wasn't painful. It was just direct.
Q:And the push, where were - how were you pushed, where were his hands, if that's what he used to push you?‑‑‑
A:My waist.
Q:Now, you're on the toilet seat. He's standing in front of you. What's the next movement he makes, if any?‑‑‑
A:He pulls down his pants.
Q:When you say, ‘his pants’, what - that's the outer pants, trousers, or underpants, or both?‑‑‑
A:He was wearing, like, cream-coloured jeans and he pulled them down to his - around his ankles.
Q: What was he wearing underneath?‑‑‑
A: White boxers.
Q:So he pushes his - or pulls his jeans down. He's there standing in his white boxers. Does he remain standing there in his white boxers?‑‑‑
A:Um, he pulls out - he pulls them down, and he pulls out his penis.
Q: After pulling his penis out, do you remain seated?‑‑‑
A: Yes.
Q: Why did you remain seated?‑‑‑
A: Because I was scared.
Q:So he pulls his penis out, and does he remain standing in front of you?‑‑‑
A:Yes - well he grabs the back of my head.
Q:Whereabouts did he grab the back of your head?‑‑‑
A:He put his hands like on the back of my head (witness demonstrates), like that.
Q:The witness has showed both hands being placed at the back - back top half of her skull. And he puts his hands there or grabs the back of your head. What does he do? Does your - whereabouts is your head? Is it vertical or does it remain in one place?‑‑‑
A:It - it gets pulled down.
Q: He pulled it down?‑‑‑
A: Yeah.
Q: With how much force did he pull your head down?‑‑‑
A: Forcefully.
Q: Did you do anything in response to that?‑‑‑
A:No. I tried to push my head back up, but he was a lot stronger than me, so I stopped.
Q:Why did you stop?‑‑‑
A:Because I felt extremely intoxicated, and I thought if I did this then maybe it'd be over.
Q:When you say you were extremely intoxicated, and you said you tried to push your head back, were you successful in pushing your head back at all?‑‑‑
A:A little bit, but he's moved it back down.
Q:Did Mr Ugle say anything to you when - during the pushing of your head down?‑‑‑
A:No.
Q: How far or where did he push your head to?‑‑‑
A: He pushed it to his penis.
Q:And what was the state of his penis, was it erect, not erect, partially erect?‑‑‑
A:It was fully erect.
Q: How far towards his penis did he push your head?‑‑‑
A: Um, until my mouth went around it and until I could go down.
Q:At that time were you aware of any sounds outside the bathroom?‑‑‑
A:The music was extremely loud, um, I just remember the music.
Q: So your mouth is pushed to his penis. Is that correct?‑‑‑
A: Yes.
Q: And what happened to his penis? Where did it go?‑‑‑
A: In my mouth.
Q:When that happened, what did you do?‑‑‑
A:I didn't know what to do. I'd never done that before, so I wasn't sure what to do.
Q: Did you want to have his penis in your mouth?‑‑‑
A: No.
Q:Where were your hands when that was occurring?‑‑‑
A:I think they were just limp on the sides of my body.
Q:What was your body doing when his penis went into your mouth? Were you sitting up, or what was your position?‑‑‑
A:I was just pushed - I was just sitting down. I was still sitting on the toilet, but my back had gone down towards is penis.
Q: And where were his hands or ‑ ‑ ‑?‑‑‑
A: On the back of my head.
Q:When his hands were on the back of your head, as he had his penis in your mouth, what was the degree of force, if any, on the back of your head?‑‑‑
A:Forceful enough that when I tried to push back he pushed me forward.
Q:Do your hands or hand remain at your side?‑‑‑
A:I remember I gave up pushing my head back, and I thought that if I put my hands around his penis and tried to, um, give him oral sex, he would let me out of the bathroom. So I put my hands around his penis.
Q:When you had your hands around his penis, how long did that last for?‑‑‑
A:Only a minute.
Q:Then what happened?‑‑‑
A:Um, he, um, he picked me up and turned me towards the sink.
Q:All this was - I'm just going back to when Mr Ugle had his penis in your mouth, how were you feeling during that time?‑‑‑
A:Scared.
Q:Why were you scared?‑‑‑
A:Because I didn't want it there. And he was older than me, and bigger than me, and I just didn't know what to do.
Q:All right. So you said that after having his penis in your mouth he picked you up?‑‑‑
A:Yes.
Q:What part - how did he pick you up? Are you able to say what part of his body was picking you up?‑‑‑
A:He - he picked me up with his hand on my waist.
Q:And what position - you went from sitting on the toilet. What position did you end up in, as far as being picked up?‑‑‑
A:He turned me around, then put me down and then moved me around so my head was in the sink, and I was bent over.
Q:Did you say anything at that stage?‑‑‑
A:Once my - once he'd done that and my head was in the sink I said, ‘Please stop, I don't want to do this, please stop’.
Q:How many times did you say that?‑‑‑
A:Once. That full sentence once, but then I remember I just said, ‘Stop please’ but my head was in the sink, and I could barely talk.
Q:What was your emotional state at that stage, when you had your head in the sink?‑‑‑
A:I was scared. More scared than before. I thought he was going to hurt me.
Q:How was your body reacting when you had your head in the sink?‑‑‑
A:I was trying to push my head up, and he had - he had one hand on my head (witness demonstrates) and one hand around my waist.
Q:The witness has indicated at the back of her neck, between the top of the spine and the lower part of the skull. Was how much force was the hand on your neck?‑‑‑
A:Extremely forcefully, to the point where I couldn't breathe because my head was just being pushed into the sink.
Q: Were you making any noise at that stage?‑‑‑
A: I was just crying.
Q: And how was your body reacting?‑‑‑
A: It just felt kind of numb.
Q:Were you moving or still, or what was the situation as far as your body at that stage?‑‑‑
A:Um, my head was trying to move up, but he was grabbing me on the waist quite forcefully and I didn't feel like I could move my lower body.
Q:All right. So you've got your head in the sink. Whereabouts is Mr Ugle positioned?‑‑‑
A:Um, behind me.
Q:And on your lower half, what were you wearing?‑‑‑
A:Just underwear at the time.
Q: What happened?‑‑‑
A:He pulled down the underwear. And then he, um, put his penis inside my anus.
Q: What did that feel like?‑‑‑
A: Extremely painful.
Q:You said earlier that you were crying. Were you still crying at that stage when his penis went into your anus?‑‑‑
A:Yes.
Q:When his penis went into your anus, did you want that to happen?‑‑‑
A:Not at all.
Q:Where were your hands when you had your head in the sink?‑‑‑
A:Um, they were in the sink.
Q: What part of the sink?‑‑‑
A: Just on either side.
Q:And you said he's pushing your head and on your waist. What were you doing?‑‑‑
A: I was ‑ ‑ ‑
Q: You're bent over?‑‑‑
A: Yeah. I was trying to breathe.
Q:When his penis was in your anus, if you can describe what it did when it was in your anus?‑‑‑
A:Went back and forth.
Q: For approximately how long?‑‑‑
A: Twenty seconds.
Q: And how did that part of the interaction end?‑‑‑
A: He removed it.
Q:So you're bent over the sink. You say he removed it. Do you stay bent over the sink?‑‑‑
A:Yes.
Q:And what did he do after he removed his penis from your anus?‑‑‑
A:He put it in my vagina.
Q:Did you say anything at that stage?‑‑‑
A:I just was - I was still crying and I just went ‘Ow’, like I made a sound.
Q: And why did you say ‘Ow’?‑‑‑
A: Because it really hurt.
Q:As far as him inserting his penis into your vagina, was there anything about your vagina that was different?‑‑‑
A:I was on my period, so I had a tampon in already.
Q:What happened to that tampon when Mr Ugle inserted his penis into your vagina?‑‑‑
A:It just got pushed up.
Q: How did that feel?‑‑‑
A: Extremely painful.
Q: You're still bent over at that stage?‑‑‑
A: Yes.
Q: And did your body do anything?‑‑‑
A: No.
Q: In reaction to this happening?‑‑‑
A:I remember I just – once he started – once he started putting his penis in my vagina I felt like I went numb, and I felt I couldn't breathe, and all the music went away.
Q: Could you see anything?‑‑‑
A: No, everything just went black.
Q:What was the next thing that you remember?‑‑‑
A:Um, I remember like, being able to just see the sink again and I don't know how long it'd been. And I – his – his hands were on my waist now.
Q:Where was the left hand and where was the right hand?‑‑‑
A:They were just both on either side of my hips.
Q:And what was the touch like on your waist?‑‑‑\
A:It was less strong than before because I hadn't resisted anything. But it was still quite aggressive.
Q:So, you see the sink. His hands are on your waist. Do you stay in that position?‑‑‑
A:No.
Q: Is ‑ ‑ ‑?‑‑‑
A: I – I ‑ ‑ ‑
Q: So is his penis still in your vagina then?‑‑‑
A: Yes.
Q:So do you stay in that position?‑‑‑
A:No. As he's – since he's let go of my neck, I think that I can get away and I fell to the ground. And as he's taking it out, I put it – I fell down to the ground.
Q:As far as falling down to the ground, where's your back?‑‑‑
A:I – put my - I pushed my back against the wall.
Q:What about your backside? Where does that go?‑‑‑
A:Along the wall as well.
Q:How do you end up as far as – with your back against the wall and your backside against the wall?‑‑‑
A:I turn sideways. And there's a towel rack just above, and I made sure I went because I was bent down, I could go underneath it. And go underneath it. And just sit there.
Q:Where was your underwear when you were sitting there?‑‑‑
A:Around my ankles.
Q: And were you still crying at that stage?‑‑‑
A: A lot more than before.
Q:Was there any conversation? Did he say anything to you?‑‑‑
A:He said, ‘Get up.’
Q:Prior to that, did he say anything about what had happened?‑‑‑
A:He said, ‘Did I get your arse, too?’
Q: What as (sic) the manner in which he said that?‑‑‑
A: He laughed.
Q:Did you respond?‑‑‑
A:No, I was crying. And I remember nodding while I was crying.
Q:So you had that interchange, and he says to you, ‘Get up’. Do you get up when you're told to do that?‑‑‑
A:No, I kept crying.
Q: What happens next, you're sitting on the floor, crying?‑‑‑
A: He grabs my arm.
Q: What does he do with your arm?‑‑‑
A: He pulls it.
Q:Where does he pull it? What's the effect of pulling your arm?‑‑‑
A:Um, he says, ‘Come on.’ And I get up.
Q:And how does he say, ‘Come on’? What manner?‑‑‑
A:He's angry. When he said it. He was angry.
Q: Did you stand up?‑‑‑
A: Yes.” (T38, L28 ꟷ T47, L20 (11 July 2023))
23During the trial of this matter, your counsel attacked the credit and reliability of the complainant. In particular, it was put to the complainant that she was flirting with you during the night leading up to the circumstances constituted by the three charges. The complainant was also challenged about her version as to what she said happened at the time of the anal rape.
24At your plea hearing, your counsel made various submissions as to what findings can be made subject to the principles enunciated in Cheung (op cit). Many of the suggested findings were opposed by counsel for the prosecution.
25After careful consideration of the evidence and bearing in mind the principles enunciated in Cheung (op cit), I make the following findings:
(a) Contrary to the evidence of the complainant, I do find, on the balance of probabilities, that she was flirtatious with you during the night leading up to the rapes. In particular, I refer to the following evidence:
(i)GF5 stated, “[ABC] was sitting on Mr Ugle’s lap up to an hour” (T145, L19);
(ii)BF2 stated, “[ABC] sat on Trohne’s lap”( T253, L10);
Furthermore, he referred to his statement wherein he stated, “I assumed that they were flirting” (T253, L10);
(iii)GF4 stated, “sit on lap not 100% sure but did see [ABC] and [GF3] sitting on each of [BF1’s] friends” (T293, L22);
(iv)GF3 stated, “saw [ABC] sitting on man’s lap at least once” (T86, L24).
It is to be noted that the prosecutor, fairly in my view, submitted that the better view of the evidence was that the complainant did sit on your knee;
(v)Furthermore, I refer to the evidence of GF5, when she stated, “[ABC] said she wanted to get with Mr Ugle” (T145, L19);
(vi)The complainant was cross-examined about kissing you and she told the police that she kissed you on the neck. It was then put to her that kissing meant lip kissing, to which she replied she could not remember, but then confirmed her position that any kissing was on the neck;
(b) In relation to Charge 1 – that is to say the alleged rape involving introduction of your penis into the mouth of the complainant ꟷ and bearing in mind it was made clear there was no issue that you did introduce your penis into her mouth, the jury has found either that was a consensual act or, alternatively, the complainant did not consent to such act, or that the jury was not persuaded that you did not reasonably believe the complainant was consenting to such penetration.
Your counsel has submitted that the version I should adopt on the evidence is that the act was completely consensual. After careful consideration of the evidence, I find that, in all the circumstances of the matter, the complainant did not consent to that act, but the jury did accept that you reasonably believed the complainant was consenting to such act. I have come to such view for the following reasons: that it is clear on the evidence that, although the complainant was maintaining she did not consent to such act but was frightened and scared, and effectively acquiesced for some time, with the intention of getting it over and done with so that would be the end of the matter. Again, on the evidence, it was clear that the complainant did not say anything to you at that time that she was not consenting to such act. Of course, her demeanour may well have been suggestive of that (I make no finding on that).
26If I may pause there, it is clear on the evidence that there was a continuum from the oral penetration to the anal penetration. Although, clearly, flirtation and intoxication (as the complainant admitted she was at the time) does not amount to consent, I consider it is of some relevance that, leading up to the anal penetration, the complainant had been flirtatious and, indeed, as I found, you reasonably believed that the complainant was consenting to the oral penetration.
27However, obviously enough, the jury was satisfied of each of the elements in relation to the anal rape. The clear and unequivocal evidence of the complainant as to consent was that she stated: “Please stop, I don’t want to do this, please stop” and that, at that time, she also commenced to cry.
28The complainant gave evidence she said that once, but also said, “stop please” later, when her head was in the sink, as she described.
29Furthermore, bearing in mind that, on the evidence of the complainant the anal penetration was in the order of 20 seconds, immediately followed by the vaginal penetration, such denial extended to that event, as did the crying.
30Again, obviously enough, the jury was satisfied that the prosecution has proven beyond reasonable doubt, the third element of rape, which can be satisfied in any of the following circumstances:
(a) you believed that the complainant was not consenting;
(b) you gave no thought as to whether the complainant was not consenting;
(c) even if you may have believed the complainant was consenting, that belief was not reasonable in the circumstances.
I do not make any findings as to the jury accepting in satisfaction of this element.
31I also find beyond reasonable doubt that when the anal and vaginal rapes occurred, you bent the complainant over and put her head in the sink in the bathroom, with one hand on the complainant’s head and one hand around her waist. In particular, I accept this was done with some force, during which time the complainant was still crying. However, I do accept that this action did not result in any particular injuries suffered by the complainant.
32I also accept the evidence of the complainant that, when you placed your penis inside her anus for about twenty seconds, she found that the movement of the penis “back and forth” in her anus was “extremely painful”, as was the situation when your penis entered her vagina, pushing up the tampon she had in her vagina at that time, which also gave rise to extreme pain.
Matters relied on by the Prosecution
33Counsel for the prosecution tendered the following documents:
(a) Document headed “Prosecution Post Trial Opening”, dated 25 August 2023 (exhibit 1);
(b) A Victim Impact Statement from the complainant, declared on 28 August 2023 (exhibit 2);
The Victim Impact Statement of the complainant
34The Victim Impact Statement of the complainant was read aloud in court by the prosecutor, Mr Devlin. In that statement, the complainant describes how the rapes have “severely impacted” her emotionally. In particular, she describes that, since the sexual assaults she has experienced flashbacks, nightmares and panic attacks, which has led to a diagnosis of Post-Traumatic Stress Disorder (“PTSD”). She has suffered ongoing depression and anxiety. She has had to take medication for most of 2020 and was continuing to take it at the time of the Victim Impact Statement. She has had to attend many psychology appointments since the offending, which have gone well outside the Mental Healthcare Plan, causing financial strain
35In particular, she describes how she feels angry that the sexual assaults have ruined her view of sexual intercourse and when her friends talk about their first time as being “incredible”, she feels as though the opportunity of it being special has been taken from her. She still feels tense when someone touches her.
36She also describes that, prior to the assault she had lots of friends, was bubbly and tried to experience new things and step outside her comfort zone whenever possible. For a long time following the assault she has felt like a “shell of who [she] used to be”. She also notes that she wished people had believed her at school, and she is scared she will never be normal, and scared that she will feel like this forever.
37Furthermore, in relation to work, she finds her psychological state causes her to be exhausted emotionally and her psychologist suggested that she give up hospitality work in early 2023 due to constant low mood and experiencing uncontrolled panic attacks at work. She has been unemployed since.
38Following the sexual offending, she did not attend her Year 12 “formal” because a friend of yours would be there and she was “scared”. She notes that the friends who were with her at the time no longer stayed friends after the assault, and she felt “entirely alone”. She has found it hard to make new friends and had difficulty in her first year at university, failing one subject. She is presently studying psychology, and feels scared she will not be able to help anyone if she cannot get past the difficulties that she is now suffering.
Matters relied on by your counsel
39Your counsel tendered the following materials:
(a) three documents headed “Outline of Plea Submissions”, consisting of Addendum 1, Addendum 2 and Addendum 3 (exhibit “A”);
(b) a procedural chronology (exhibit “B”);
(c) psychological report of Dr Elizabeth Tong, dated 20 July 2023 and psychological report of Mr Richard Taylor, dated 29 August 2023 (exhibit “C”);
(d) a bundle of character references (exhibit “D”), consisting of:
·Reference from Ms Gail Lister, manager Aboriginal Employment Unit, Victorian Public Sector Commission, dated 21 August 2023.
·Reference from Ms Victoria Pizzi, dated 21 August 2023. Ms Pizzi is a twenty-three-year-old university student, currently completing a psychology degree at RMIT, who has worked in hospitality and is an active member of her community in Melbourne. She has known you and your family for four years, when you moved to Melbourne in 2019.
·Reference from Ms Jessica Hart, dated 24 August 2023. Ms Hart is your grandmother, being the mother of your mother and, of course, has known you all your life.
·Reference of Ms Kelly Hart, dated 25 August 2023. Ms Kelly Hart is an Aboriginal health practitioner, having worked with the Health Department of Western Australia, Child & Adolescent Community Health, Aboriginal Health Team and Derbarl Yerrigan Health Service, over the past decade in Perth, Western Australia. At the time of her reference she was based full time in Midland, Western Australia, and had been employed in her current role for the past nine years. She has known you for your whole life, as her mother, Ms Karla Hart, is her aunt, although by Aboriginal kinship, your mother is closer to her, somewhat like sisters, therefore she refers to your mother as “sister” and you as “nephew”.
·Reference from Ms Melinda Eades, undated. Ms Eades is a graduate of the Western Australia Academy of Performing Arts – Aboriginal Theatre, a former student of NAISDA Dance College, former member of the Ochre Contemporary Dance Company and has been part of the Kwarbah Djookian Noongar dance group for fifteen years. She referred to you as her nephew, and has known you all your life.
·Reference from Ms Caytlin Lara Eades, undated. Ms Eades describes herself as an Aboriginal artist, arts facilitator and project co-ordinator, and was previously a student at Curtin University, Bentley, for four years. She has known you all your life and refers to you as her first-born nephew
·Reference from Ms Rhain Eades, undated. Ms Rhain Eades describes you as her nephew, who she has known since you were born, she being seven years older than you.
·Reference from Ms Leanne Kay Woods and Ms Elizabeth May Woods, dated 24 August 2023. Ms Leanne Woods is the daughter of Elizabeth May Woods (who is seventy-four years old). Ms Elizabeth May Woods is your “Nan” and is a respected Aboriginal Elder in the Great Southern Region of Western Australia, which involves a work history ranging from a resource officer for thirty years, with the former Department of Community Welfare and the Department of Child and Family Services; as a support worker for the Family Violence Prevention Legal Service Program for five years and as a volunteer worker for Nanny Links, where she sews soft toys for kids in DCP care. Ms Leanne Woods is your great aunt and is a registered nurse with the Western Australia Country Health Services and is employed as an Aboriginal mental health worker. She has worked since the age of eighteen in employment with the Southern Aboriginal Corporation for fourteen years in various roles, including retail; secretary/receptionist; assistant bookkeeper, community development officer and project officer and manager for the Family Violence Regional Activities Program.
·Reference from Ms Gillian Woods, undated. Ms Woods describes herself as your great aunt, who is presently employed as a site administrator in the FIFO industry, presently for five years. Previously she was employed in the Aboriginal Organisation as a facilitator for a family support government sector in Child Protection and as an Aboriginal practice leader for three-and-a-half years.
·Reference from Mr Steven Osborn, dated 24 August 2023. Mr Osborn describes himself as a senior people and culture consultant at VenuesWest, who has been employed for the Western Australian public sector for over thirteen years, predominantly focusing on diversity and inclusion, and employee wellbeing. He also notes that he is a close friend of your mother, Karla, having met her while studying at university in 2006 and he later met you in 2010.
·Letter from Ms Alice Ugle, undated. Ms Ugle describes herself as a “proud Gunditjmara, Peek Whurrong and Noongar women (sic) from the South West of Victoria”, who works with the First Peoples Assembly of Victoria as the senior community engagement officer. She states that she has known you for the past few years, being the first cousin of your father and having a shared family connection over the years.
·Reference from Ms Susan Moustaka, dated 23 August 2023. She describes how she has known you, your mother and father for over thirteen years. Her friendship with the family began in 2020, when your mother worked in Aboriginal Programs, a program she was managing at the Central Institute of Technology.
·Letter from your parents, dated 23 August 2023.
·Reference from Ms Melissa Jane Uddin, undated. Ms Uddin describes herself as a Western Australian security officer, who has lived next door to your family for seven years. She is also your family’s cleaner, personal security guard when you are away and looks after your family’s dogs when your parents travel. In this respect, she has known you for about seven years.
·Reference from Ms Frances Braithwaite, dated 24 August 2023. Ms Braithwaite describes herself as an educator, educational leader for over a decade and an accredited foster parent since 2020. She has degrees in the Arts and Education from Edith Cowan University, Charles Darwin University and the University of Adelaide. As an educator and leader, she has substantial and frequent professional development in school leadership and student health, wellbeing and welfare. She describes that she has known you since about 2005, when you were a young boy, such connection beginning when she became friends with your mother at university, which has evolved into a lifelong friendship.
·Reference from Mr Rick Brayford, dated 23 August 2023. Mr Brayford has described how he has known your mother since 2005, when she studied the Aboriginal Performance Program at the Western Australian Academy for Performing Arts (“WAAPA) and throughout the years from 2005 he got to know you, as you would regularly come to WAAPA when you were on school holidays. In particular, he notes that in late 2021 you applied to the Aboriginal Performance Program at WAAPA, the same course that your mother did sixteen years previously.
·Reference from Suzanne Clerc, dated 26 August 2028. She describes herself as a Nyul Nyul and Yawuru woman from the Kimberley, who is an international award-winning filmmaker. She describes, further, that she has been a friend and colleague of your mother for the last ten years or so and has known you over the same time;
(e) Letter from your counsel to the OPP to resolve the matter, dated 16 June 2023 (exhibit “E”)
(f) two photos of you, both photos showing you performing native dance (exhibit “F”).
I have read all such references. The referees are wide-ranging, including extended family members, people who have come into contact with you through knowing your parents and consequently knowing you over the years, together with people you have been involved with either during your education or associated with sporting activities.
40I consider a series of common themes emerge from a perusal of such references. Such themes include:
(a) That you are considered to have a polite, humble, caring and gentle nature. In particular, it was said, on a number of occasions, how you are very respectful of your elders. You involve yourself with the Noongar people, becoming particularly involved in traditional dances;
(b) Part of your character is reflected in you being civil, polite and respectful of both men and women and, indeed, many of the female referees reflected on your courtesy to them, with no sign of any difficulties with dealing with women;
(c) Some of your referees referred to the closeness of your family and that you have a strong relationship with both parents (particularly your mother), both of whom have been described as very loving parents. Furthermore, you have a baby daughter, from a previous relationship, who you support and with whom you have an adoring relationship;
(d) Several of your referees also noticed that your mental health has deteriorated over the course of the last four or so years as a result of the ongoing legal procedures. In particular, you have been described as being severely depressed and some of them noted that you have had suicidal ideation, with one referee noting, to her knowledge, CAT teams have been involved on two occasions when there were attempted suicides;
(e) There was some reference, also, to you being a gifted athlete and in particular a very good Australian Rules Footballer, who played in Perth, your home state, and you had hopes of being drafted into an Australian Football League club.
41In particular, I refer to the letter from your parents, dated 23 August 2023. Your parents, Karla Hart and Fraser Ugle, state that they have been in a stable and loving de facto relationship for twenty-eight years and that you were raised in a quiet and loving home, free from substance abuse and domestic violence.
42Your mother has a Bachelor of Arts from the Edith Cowan University in Perth and has enjoyed many accolades for the work she has done for the Aboriginal community, and in the film and television industry. In 2021, she won Aboriginal West Australian of the Year. Your father is a self-employed business owner, running a trucking company and employing many people.
43Both of your parents are successful leaders in their community. Over the years, they have had children in care from Child Protection and currently have the full-time care and responsibility for Tionne Eades, who is a sixteen-year-old girl under a Child Protection order – she being the daughter of your mother’s sister. Your parents were selected to take care of her in order that a stable and loving household could be offered. Tionne is currently in Year 11 at High School and set to complete her Year 12 Certificate in 2024.
44In particular, your parents stated:
“Trohne has not ever been violent and was raised to have deep respect for all people but especially women, having Tionne as a foster sister since she was 6 years old has made Trohne aware of his responsibility to make sure women are respected and safe. Trohne is a kind and loving son who cares for his family and friends and always goes out of his way to ensure vulnerable people are safe. It is not in Trohne’s nature to take advantage of other people. Trohne has 10 Godmothers who all watched him being born who he has deep respect for and seven aunties who he treats with the respect of mothers due to Noongar kinship and his general love and respect. Trohne is aware of the advantages he has in life with both parents working and stable and often gives clothing, money, rides and a couch at our home for his young friends and family in need.”
45Your parents also make reference to the following issues:
· If you are registered as a sex offender, pursuant to the SORA legislation, it will jeopardise their ability to continue providing a home for Tionne, who lives in their home, and when you ultimately return home you will not be able to obtain the necessary “working with children” approval and this will jeopardise their capacity to assist any future foster children.
· Again, if you are registered as a sex offender, one of the family businesses which you have been involved in, and employed by in the past, would be affected. Such business produces events involving the Noongar community, such as teaching Noongar traditional dancing, Noongar language, story-telling, headband making and rock painting. You had supervised the Noongar performing dance group in the past and, indeed, as I have already referred to, there are photos of you performing such dance. If you are a registered sex offender, you will not be able to be engaged or employed in such matters.
· Your parents note that, from the day of your arrest to your trials and recent conviction, this has taken a heavy toll on every aspect of their lives, affecting their mental health, physical wellbeing, financial security and peace of mind. Both businesses have suffered by such time being spent in Melbourne during the various processes leading up to the final court case.
· Over the four years, your parents have noted that it has been a very big effort to try and get you through “mentally”. In particular, they refer to your withdrawal from many of your usual activities, including playing team sports – you have not played in three years – and before that you played continually from five years old. Furthermore, you do not engage with the community and are no longer involved in a traditional Noongar dance group, in which you enjoyed participating in past years.
· They noted that they visited you at the Melbourne Assessment Prison on 20 August 2023 and witnessed you to be a very scared and vulnerable young man trying to come to terms with a very much unexpected guilty verdict.
· They noted that being incarcerated in a Victorian prison will mean you are off your native Noongar country and have no access to the usual cultural practices and supports, including family and friends – in particular, losing contact with your one-year-old daughter, whose birthday occurred on 27 August 2023, when you were in prison.
The evidence of the clinical psychologist, Richard Taylor
46Richard Taylor is a clinical psychologist who practises in Western Australia. He describes how you were referred to him on 28 April 2023 by your medical practitioner, Dr Rajeshary Krishnan of the Pramana Medical Centre for an opinion and management of your mental health issues.
47Mr Taylor notes that both you and your mother attended his clinic on 12 June 2023 and, thereafter, there have been consultations in person and also by Telehealth. He also notes that he utilised the Cultural Formulation Interview (“CFI”) (American Psychiatric Association) to enhance clinical understanding and attention to social structures.
48Mr Taylor obtained a history that you had commenced a career as a professional footballer, first in Perth and then based in Melbourne. Furthermore, he obtained a history that the subject offences occurred in a social party environment when in Melbourne seeking to get into AFL drafts.
49Mr Taylor comments that you were:
“… naïve and ill-prepared to identify let alone deal with situations in the football community that might have compromised [your] footballing future. [Your] ‘mental illness’ started at this point accentuated by cultural factors and a restriction of [your] horizon of possibilities.
During and subsequent to [your] three trials [you] have been enmeshed within the structure and process of the legal system which [you have] experienced as negatively predisposed towards [you].”
50He records, on 5 April 2023, you exhibited suicidal ideation and self-harming in response to the ongoing court proceedings. At that time, you declined hospital admission by ambulance paramedics in Melbourne and this reinforced your continued experience of epistemic injustice involving social injustice and experiencing negative prejudices and stereotypes.
51Later, Mr Taylor opines:
“[Your] resultant psychological instability needs to be understood from a socioecological approach. There are environmental features that significantly exacerbate [your] psychological suffering and mental health on a variety of levels. For example [your] behavior is strongly influenced by positive family interaction and strong role models of achievement. However the beneficial mutually defining aspects here have been significantly fractured by events in the legal system since the IE [the index event]. The fallout from legal processes has gone well beyond you yourself and shattered [your] family and [your] community of shared interests. [Your] current psychological disability (see below) must also be viewed in these contexts and [your] suffering is not simply internally directed.”
(Footnote omitted.)
52Mr Taylor also notes he had a Telehealth appointment with you on 24 August 2023, when you were on remand. He notes that, at that time, you were in a “psychological state of deep existential malaise”, in that you had lost any sense of meaning to your life and, as a result, you were withdrawn completely from everyday functioning and suffering despair, clinical levels of stress and also immobilised by depression. Mr Taylor noted that your presentation was so severe that you were unable to essentially converse.
53Mr Taylor notes that if you were to be registered as a sex offender it would be a major factor retarding you moving forward in psychological, social and family terms. He does note that you present no risk to the community in any form. Mr Taylor also notes that you have been witness to your parents’ experience of trauma, as your recent experience of the legal system has unfolded and this has also been a major risk factor towards your observed decline in mental health and you are already carrying a higher risk factor for mental health issues due to cultural factors.
The evidence of the psychologist, Dr Elizabeth Tong
54Dr Tong notes that she was retained by your solicitors to provide a report which was going to be given to those acting for the prosecution in support of an application to discontinue proceedings, as such proceedings “to date have had a devastating impact on [your] mental health”.
55In a detailed psychological report, Dr Tong obtained your personal history, relationships history, education and employment history and mental-health history. Furthermore, various psychometric measures were undertaken and a mental-state examination also taken with Dr Tong, who noticed that you presented as an “attentive, courteous and co-operative young person”, who impressed her as a credible historian and there appeared to be no distortion, exaggeration, idealisation or embellishment in the narrative you provided.
56On the basis of all this material, she expressed various opinions as follows:
“Re: The impact that these legal proceedings have had on [you] (noting that they were commenced in late 2020);
83. The psychological impact of these Court proceedings which have remained unresolved and are presently on the cusp of proceeding into the fourth year, has significantly contributed to [your] gravely deteriorating psychological health.
84. On 5 April 2023, GP Dr Mathew Pua at Southbank Medical Clinic Southbank Vic 3006, prescribed Diazepan (sic) (an Anxiolytic Benzodiazepine commonly prescribed to treat Insomnia and Anxiety Disorders), ‘if there is a recurrence of what is most likely Panic Attacks’.
85. On 28 April 2023, upon [your] return to WA, GP Dr Rajeshwary Krishnan at Pramana Medical Centre Gosnells 6990 WA. reported that [you] had ‘presented with Complex PTSD, Anxiety Disorder and Traumatic Experience related to recent stressors associated with ongoing legal issues’.
Re: A Mental Health assessment including Depression, Anxiety, Cognitive Functioning and any other relevant considerations;
86. [Your] global responses to the comprehensive battery of scientifically validated and reliable, standardised disability, cognitive and behavioural psychometric screening measures administered during this psychological assessment were consistently aligned with probative clinical evidence indicative of severe symptoms of Depression, Anxiety and Stress, which have rendered [you] psychologically incapacitated and unable to cope with daily living (References 2 & 3). [You] disclosed two episodes of attempted suicide and [remain] psychologically traumatised and actively preoccupied with suicidal ideation.
87. [You] disclosed at interview, that each episode of attempted suicide, had been witnessed separately on each occasion by [your] profoundly traumatised parents, and [you remain] preoccupied with suicidal ideation and [are] imminently vulnerable to devising suicidal plans and repeatedly expressed suicidal intent.
88. When describing [your] attempted suicides, [you] also expressed fear of being killed by Police when they found [you] in response to [your] mother calling the Triple 000 Emergency Line after [you] disappeared in Melbourne after telling a friend [you were] intending to kill [yourself]. [You] recalled that [you] saw that the Police Officers were armed and [you] thought ‘they are going to shoot me and kill me’.
89. During her collateral interview, Ms Karla Hart [your] mother disclosed that ‘every other week, there has been a suicide in our family. My uncle recently committed suicide and three weeks ago, my niece suicided and she was the same age as [you]. We’ve had three close family members who have died in custody and [you are] terrified that [you] will be put in gaol’
Re: An Opinion of the impact of further trial proceedings [your] mental health condition, taking into account [your] Cultural Heritage; and [your] Treatment and Prognosis;
90. Aboriginal and Torres Strait Islander Health and Wellbeing has been highlighted in The Australian Health Ministers’ National Mental Health Plan for 2003-2008 published by The Australian Government, Canberra ACT, states that ‘Health involves the physical, social, emotional spiritual and cultural well-being of the whole community and ill health can occur when somkehing goes wrong in one of these areas. Although there are many causes of ill health, a person’s environment can make a person more at risk of developing social and emotional wellbeing and mental health problems and mental illness’.
91. The Australian Bureau of The National ATSI Health Council (2003) notes that ATSI people are the least healthy of all Australians. High rates of suicide, high levels of hospitalisation for self-harm and early death from physical and mental illnesses. Despite these serious health problems, they also have much lower levels of access to appropriate health care than non-indigenous Australians. These health problems, combined with social problems such as racism, discrimination, child and family separations, being incarcerated in prison or scheduled for involuntary treatment in mental hospitals, all contribute to the high levels of grief and loss, trauma and anger experienced by ATSI individuals and their families and communities’.
92. According to the Aboriginal and Torres Strait Islander Mental Health and First Aid Manual published by Orygen Research Centre and The University of Melbourne (2009), Loss, Grief and Trauma are commonplace in ATSI communities. Communities experience high rates of death due to physical illness as well as suicide. As a result, ATSI people attend funerals regularly to celebrate the life as well as mourn the passing of loved ones. There is also unresolved grief surrounding the forced removal of ATSI children. The impact of forced removal has resulted in problems with identity, acceptance, parenting and transgenerational trauma (Reference 4).
93. The Australian Mental Health and Wellbeing (NGO) Beyond Blue, established in 2000, (HQ in Melbourne CBD Victoria), provides support programs to address issues related to depression suicide, anxiety disorders and other related mental illnesses and the NGO concurs that Significant Risk factors that can impact on the social emotional wellbeing of Aboriginal and Torres Strait Islander communities include: widespread grief and loss, impacts of the Stolen Generations and removal of children resulting in unresolved trauma, separation from culture and identity issues, discrimination based on race or culture, economic and social disadvantage, physical health problems, incarceration, violence and substance misuse. The experience of racial discrimination is also worth specific focus as over half of the indigenous people who have experienced discrimination have reported feelings of psychological distress.
94. Suicide rates are more than twice as high in young Indigenous Australians compared to non-Indigenous Australians. According to research published on 9 January 2023, by the Australian Institute of Health and Welfare, Western Australia [you reside] with [your] family in the Indigenous Noongar Community, and suicide rates in Indigenous males (48.6) deaths per 100,000 population) were about twice that in non-Indigenous males (20.2).
95. Suicide contributes to premature mortality in Indigenous Australians, especially in the younger age groups. Data from the National Mortality Database and the Australian Bureau of Statistics Causes of Death from 2017 to 2021 showed the rates of suicide deaths per 100,000 people among Indigenous Australians were 16.6 and 47.6 in those aged 0–24 and 25–44 years respectively. These rates were 3.1 and 2.9 times as high as in non–Indigenous Australians in the respective age groups (5.3 and 16.2 per 100,000 respectively.
96. Suicide deaths also represent a higher proportion of deaths in young Indigenous Australians compared to non-Indigenous Australians. From 2017 to 2021, almost a quarter (24%) of deaths in Indigenous Australians aged 0–24 were due to suicide, compared to 17% in non-Indigenous Australians in this age group.
97. Prognostic indications for [your] positive response to psychological treatment for [your] diagnosed Depression and Anxiety remain contingent on expeditious resolution of [your] prolonged legal vicissitudes, without which [your] preoccupation with suicidal ideation and [your] firmly expressed intent to self- harm, may escalate to devising effective plans for self-destruction.” (See Report of Dr Tong (exhibit “C”) at paragraphs 83-97)
(sic)
Your background and personal circumstances
57Based, in part, on the material which has been tendered and, in part, based on various submissions made by your counsel, I note the following in relation to your circumstances:
· As I have already recorded, you are twenty-three years of age, having been born in November 1999 and were twenty years old at the time of the subject offending.
· You were born in Albany, Western Australia, and are a member of the Noongar indigenous community. Your father, Mr Fraser Ugle, owns and operates a trucking business, and your mother, Ms Karla Hart, is a director of Karla Hart Enterprises Pty Ltd; is a filmmaker, film director and film producer, who was awarded the title of Western Australian Aboriginal of the Year in 2021.
· You are the only biological son of your parents. You are the eldest of thirty-two Noongar first cousins, all of whom are culturally regarded as your younger siblings in the indigenous Noongar community. Again, as has already been noted, in your early childhood years, your mother and father concurrently parented other children from their immediate family.
· You initially attended primary school in Western Australia at Bentley Primary School to Year 4 or 5 and then recalled moving to South Thornlie Public School where you completed your Year 6 primary education. Your secondary education was initially spent at Clontarf Aboriginal College after Year 10 or 11, after which you were enrolled at the Lumen Christi College, an independent Roman Catholic co-educational day school, where you completed Years 11 and 12.
· Throughout your school life, you have excelled in physical education classes and athletics, and was always an asset to any school teams on the sporting field. Your mother disclosed to Dr Tong you had struggled academically during your early school years, particularly with reading skills, but have never been diagnosed with dyslexia. Though having a clearly normal IQ capacity (as confirmed by Dr Tong), you required special education support and received remedial assistance for reading and writing from a teacher’s aide in the classroom, and recalled being teased by other children in the class for needing such attention.
· Upon leaving school, you worked for seven months as an “on-call runner” assisting (ten-hour film shoots) and travelling between Freemantle and Midland running errands for the film company, such as supporting staff and collecting petty cash.
· Between the ages of eighteen and nineteen, due to your sporting potential, you were invited to train at Melbourne with the Australian Football League and apparently you got involved in the Simon Black Academy, which provides an alternative program that exposes student athletes to a wide network of elite coaches.
· The Simon Black Academy facilitated your tertiary enrolment at Torrens University “in a course about how to use sport in schools”. You ceased this university course and stated to the psychologist, “[f]ootball life is over for me now”.
· Although you have always aspired to seek and maintain gainful employment, you have been unable to work and are currently reliant upon Centrelink benefits.
· You have had three previous relationships in your life and you stated to Dr Tong “they just haven’t really worked”. You have a baby daughter, who lives with her mother some distance away. You have regular parental contact with your baby daughter and you communicate very frequently on Facetime calls.
· You denied to the psychologist, Dr Tong, of ever seeking voluntary mental-health support or being scheduled by government health authorities for involuntary admission and treatment at a mental-health facility.
· Following your suicidal ideation and self-harming gestures in Melbourne on 5 April 2023 – in response to the ongoing court proceedings, you self-harmed by punching yourself on the head and bashing your head with a mobile telephone ꟷ causing your mother to seek an ambulance, with paramedics declining to take you to a hospital. Your mother then took you to seek the general practitioner, Dr Mathew Pua, at the Southbank Medical Clinic, who prescribed a low dose of Diazepam for what he described as “most likely Panic Attacks”.
· On 28 April 2023, when you returned to Western Australia, you attended the general practitioner, Dr Rajeshwary Krishnan, at Pramana Medical Centre, Gosnells, Western Australia, who reported that “[you] presented with complex PTSD, Anxiety Disorder and Traumatic Experience, related to recent stressors associated with ongoing legal issues”. Dr Krishnan referred you to the clinical psychologist, Mr Taylor, to whom reference has already been made.
58Matters put by your counsel in mitigation of sentence include:
(a) At the time of the subject offending you were a “youthful offender”, being twenty years old. In this respect, your counsel was relying on the well-established principles enunciated in R v Mills ([1998] 4 VR 235] and Azzopardi v R; Baltatzis v R; Gabriel v R ((2011) 35 VR 43).
I refer to the Victorian Court of Appeal decision of Balshaw v R( [2021] VSCA 78), wherein at paragraphs 54-56, the Court of Appeal, consisting of Kaye and T Forrest JJA stated::
“54The appellant’s youth and immaturity were, in the circumstances of this case, considerations of particular importance as mitigating factors.
55 The principles relating to the relevance of an offender’s youth as a mitigating circumstance have been well established. In R v Mills, Batt JA (with whom Phillips CJ and Charles JA agreed) expressed the principles in the following terms:
(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
56The particular weight to be accorded to the youth of an offender must depend on the circumstances of the case. In that respect, it is recognised that as the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth. (Reference was made to Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43, 57 at [44] (per Redlich JA); DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272, 289 at [56] (per Warren CJ, Weinberg and Kaye JJA). Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence be given sufficient weight.” (Reference was made to DPP v Lawrence (2004) 10 VR 125, 132 at [22] (per Batt JA) and 133 at [25] (per Winneke P).
(Footnotes omitted.)
Counsel for the prosecution accepted that you were a youthful offender and the various authorities to which I have referred have application. The Court also accepts that such submission is a relevant consideration;
(b) The issue of delay
The issue of delay was put in two ways; first, what was referred to as “specific” delay, in that if the offending had been dealt with soon after the alleged offending, you would have been eligible for confinement in a Youth Justice Centre. Counsel for the prosecution did not accept such a proposition on the basis it was highly unlikely that, even in a timely way, you would have been dealt with to allow that to occur. In particular, counsel for the prosecution highlighted that this would have been over the COVID period, which would have delayed matters, I might add, through no fault of you or your solicitors.
The second way was referred to as “per se” delay. It was submitted that the trial giving rise to your guilt has been delayed by several “unfortunate” issues that were not the fault of you or your lawyers.
Your counsel submitted the following matters in support of such proposition:
(i)on 28 February 2022, the prosecution applied to adjourn the special hearing of the complainant, as they had not diarised the hearing and had not prepared the complainant for the hearing;
(ii)the first trial in December 2022 had to be vacated and adjourned, and the jury discharged, due to a witness giving a prejudicial answer;
(iii)the second trial on 27 March 2023, had to be vacated and the jury discharged due to inappropriate conduct of jurors.
In this respect, I refer to the chronology set out earlier in these Reasons and note that your record of interview was undertaken on 14 January 2021, which was approximately one year after the alleged offending and, indeed, the trial which has just been completed, commenced on 3 August 2023, some three years and seven months after the offending.
Significant delay between the time an offender is interviewed by the police or the time charges are laid, as well as the delay between the laying of the charges and trial, can be a powerful mitigating factor (See Tones v R [2017] VSCA 118 at paragraph 36). Although delay, in itself, creates no automatic right to a sentencing discount, it is clear enough that when the prosecution unduly delays bringing the matter to court, or, more particularly, where the delay is through no fault of the alleged offender or his solicitors, there is much more likely to be a discount (see R v Nikodjevic [2004] VSCA 222 at paragraph 22).
Generally, delay is analysed as a mitigating factor by reference to two limbs – the first limb concerning “unfairness” to the alleged offender, in that a charge or charges were “hanging over” his head and caused him anxiety. The second limb concerns whether, during the course of the delay, the offender made progress towards rehabilitation and if prospects of rehabilitation are good (See R v Merrett, Piggott & Ferrari (2014) 14 VR 392 at 35-39).
I consider that the first limb, concerning unfairness is particularly relevant to your situation, bearing in mind the delays made plain by the chronology. In particular, where the unfairness limb is invoked, psychological injury sometimes gives support to the duress endured by an offender. In the circumstances of this matter, I consider there is clear and unequivocal evidence that you have suffered psychologically as a result of the process of getting this matter on to trial and the duration of that delay.
Although delay does not have to be “inordinate” before it may considered in mitigation (See R v Miceli [1998] 4 VR 588 at [591]), if such delay is “unduly long”, it may be seen as a mitigating factor.
I should add, the delay to which I have referred has been accepted by the prosecution to be caused by reasons other than anything to do with you or your solicitors. Furthermore, as I understood, the position of the prosecution it is accepted that delay is a relevant mitigating factor.
The second limb of the concept of delay –rehabilitation – would also have some relevance, given that you had been on bail to 18 August 2023, when you were remanded in custody after the recent jury verdicts. I was informed by both parties that, other than one small matter, nothing to do with any sexual matters, you have not come under the notice of the authorities or been charged with any sexual offending.
I note, based on the evidence of both psychologists, you have suffered significant psychological symptoms, which are ongoing, and over that period you have deteriorated. It was submitted by your counsel that the consequences of such delay manifested in your psychological condition “has been essentially [albeit inadvertently] punitive”.
I do take into account the issue of what was described as “per se” delay as a mitigating circumstance in ascertaining an appropriate sentence;
(c) That you are a person of previous good character. In this respect, I again refer to the large number of referees and accept that, seemingly, you were a person of good character leading up to the offending and, of course, had no prior criminal convictions up to that time.
Several propositions can be gleaned from the authorities:
(i)an offender’s good character will always entitle them to some leniency, although maybe minimal (Ryan v R (2001) 206 CLR 267 at [278]-[279]; [297]-[300];
(ii)although good character must be balanced against the circumstances of the offence for sentencing purposes (Ryan v R (2001) 206 CLR 267 at [278]-[279]; [297]-[300]); and the weight to be given to good character may depend upon the seriousness of the crime and whether it was an isolated act, or part of a course of conduct (See Ryan v R (op cit) at [34]);
(iii)good character is also relevant to an offender’s prospects of rehabilitation (See R v Rau [2010] VSC 370 at paragraph [32]).
I do take your previous good character into account when determining an appropriate sentence;
(d) Your counsel also submitted that you have excellent prospects of “rehabilitation”. I accept that your prospects in this area are very good, given that you do have the support of an extended family and, indeed, your previous good character;
(e) Your counsel submitted that, in particular, you will undergo hardship in custody, more onerous than a sentence served by a “hypothetical normal prisoner”. In particular, the following matters were referred to by your counsel:
(i)you are youthful;
(ii)you have never previously been in custody;
(iii)you will be serving the sentence in a foreign state many thousands of kilometres away from your home and community;
(iv)you will know that your parents had moved from their home to rent and live here to be nearer to you;
(v)as a young Aboriginal man, who has been born and raised as part of the Noongar “mob”, your physical and cultural dislocation will be a significant burden to bear.
I accept, in general terms, such submission;
(f) Your counsel submitted that the opinions given by both psychologists, enlivened Principles 5 and 6 set out in the case of R v Verdins; R v Buckley; R v Vo ((2007) 16 VR 269 at [32]). It is submitted the imprisonment will weigh more heavily on you by virtue of your mental health as compared to prisoners without your mental-health issues and, furthermore, there is a serious risk that imprisonment will exacerbate your poor mental health.
As I understood the situation, counsel for the prosecution accepted that both limbs of Verdins were open on the evidence, I accept that such limbs are relevant as mitigating factors;
(g) Your counsel also submitted, in the event of your incarceration, your family – that is your mother and father – would suffer hardship and that such hardship can be described as “exceptional” within the meaning of the well-known case of Markovic v R; Pantelic v R ((2010) 30 VR 589 at [12]-[13] and [15]-[17]). I also refer to the recent decision of Director of Public Prosecutions (“DPP”) v Hill (A Pseudonym)( [2023] VSCA 84), which re-affirmed the principles in Markovic v R; Pantelic v R ((op cit).
In the circumstances of this matter, the basis of such submission is the contents of the letter by your parents, to which reference has already been made – in particular, their intended situation that, if you are incarcerated, they will rent premises in Melbourne and the difficulties of you being registered under the SORA legislation, which would not permit them to have your foster sibling.
Although I do accept your parents will suffer hardship if you are incarcerated, I do not accept that it satisfies the test of being “exceptional” in terms of how that concept has been applied to many cases. In particular, much of the hardship referred to by your parents relates to the consequences of you being registered as a sexual offender with a mandatory reporting period of fifteen years pursuant to the provisions of the SORA legislation. It is not permissible for me to take into account such consequences;
(h) Your counsel also submitted that effort was made to resolve the matter before the Court prior to the special hearing, but that due to “issues of mandatory sentence and mandatory SORA reporting” that offer was limited to an offence that was “not a realistic resolution”.
Ultimately, your counsel submitted that, in all the circumstances, this case “calls for mercy” in your sentence.
59Your counsel submitted that, in all the circumstances, the two offences of rape are in the “low range” of this type of offence. Fairly, your counsel submitted that such a view is based on various contingent findings in relation to the matters I refer to when discussing how the jury verdict should be interpreted.
Conclusion
60A jury has found you guilty of two charges of rape – the first charge involving you introducing your penis into the anus of the complainant (Charge 2) and the second charge involving you introducing your penis into the vagina of the complainant (Charge 3). The offence of rape is a very serious offence, made clear by the inherent nature of the offence and, indeed, the maximum penalty of twenty-five years’ imprisonment. Furthermore, as I have recorded, the offence of rape is also subject to the Standard Sentencing Scheme, which provides that the standard sentence for the offence is ten years.
61You have maintained at all times that you are not guilty of such offences. Of course, you are entitled to such view, but, in the circumstances, a jury has found you guilty of such offences and accordingly you are not entitled to any discount on your sentence for any plea of guilty in respect to any of the offences.
62Although there were two distinct rapes – one involving the anus and one involving the vagina – it is clear that your offending consisted of one continuum, initially with the anal rape and then immediately after, the vaginal rape. I do accept that such continuum involving both rapes did not extend for any great length of time. In this respect, the complainant was of the view that the anal rape lasted for about twenty seconds and although there was no time estimate in relation to the vaginal rape, the description by the complainant would suggest that that rape occurred over a relatively short time.
63As I have already recorded, I do find that when you introduced your penis into the anus of the complainant and moved “back and forth”, the complainant found such activity “extremely painful”. Furthermore, when you introduced your penis into the vagina of the complainant – bearing in mind that she was having her period and had a tampon in her vagina – I also accept that such insertion pushed up the tampon, which the complainant found to be “extremely painful”. Of course, there is no evidence that you had any knowledge whatsoever that the complainant had a tampon in her vagina prior to the rape.
64Again, as I have already recorded, I consider that there was some degree of aggravation when, as I accept, you forcefully pushed the head of the complainant into the basin and held it there, as described by her. Furthermore, I do also find beyond reasonable doubt that you were not wearing a condom during the course of the rapes and such is an aggravating factor – albeit there is no evidence whatsoever that the rapes ended up in a pregnancy or the complainant contracting any medical condition.
65One only has to refer to the Victim Impact Statement of the complainant, declared on 28 August 2023 (exhibit 2), to have some understanding of the devastating consequences suffered by the complainant as a result of such rapes. She has been diagnosed to suffer from Post-Traumatic Stress Disorder, with associated depression and anxiety, for which she takes medication, and the need to obtain psychological counselling. Such psychological state has impacted on her ability to do certain work, to meet new friends and feel comfortable with them, together with tension when someone touches her. She continues to still be “scared” about how the future will play out for her, both to work, making friends and generally overcoming her psychological problems.
66I have also recorded earlier in these Reasons, that the complainant was flirtatious with you leading up to the episode of oral sex and that, in all the circumstances, and for the reasons which I stated earlier, I consider that it was found by the Jury that you had a reasonable belief that the complainant was consenting to such action. It is in this context that the two rapes were committed.
67I consider that your moral culpability is lessened to some extent by these events leading up to the rapes and I also consider that such rapes were opportunistic, rather than involving any particular planning. I also accept there was no overt violence during the rapes or any particular degradation of the complainant by you.
68Your counsel submitted that the objective gravity of the rapes is “low range”, whereas as counsel for the prosecution submitted that the objective gravity of your offending was in the mid-range. Bearing in mind that the offending involved two rapes – albeit in a continuum, some aggravating factors being involved (but without overt violence or degradation) – I consider that the objective gravity of your offending, taking all the circumstances I have found into account, is higher than low range, although probably slightly less than mid-range.
69I also accept that there are reasonably-powerful mitigating factors to which I have made reference – including: you being a youthful offender, with the emphasis on rehabilitation, rather than general deterrence; the issue of delay, particularly the circumstances of you having the legal process hanging over your head for a prolonged period these charges and manifesting in psychological consequences; Principles 5 and 6 of Verdins; your previous good character; and the hardship which you will experience in prison. All of these matters are relevant to an appropriate disposition.
Standard sentencing considerations
70I refer to s5A and s5B of the Sentencing Act 1991, which set out various matters relevant to a standard sentence. Although the Standard Sentencing Scheme has been applied by a number of judges in the County Court, it was first dealt with in the Supreme Court by Champion J in R v Brown ([2018] VSC 742.). That decision was appealed in Brown v R ([2019] VSCA 286), wherein a five-judge Bench of the Court of Appeal (consisting of Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) explained the operation of the new provisions. The Court of Appeal largely upheld the reasoning of Champion J in Brown (op cit ) at first instance. Some assistance is also obtained from the High Court decision of Muldrock v R ((2011) 244 CLR 120).
71I refer to the Court of Appeal decision in Brown (Op cit) at paragraphs 4-7), wherein the Court of Appeal stated:
“For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
does not affect the established ‘instinctive synthesis’ approach to sentencing;
does not require or permit ‘two-stage sentencing’; and
does not otherwise affect the matters which the court may, or must, take into account in sentencing.
The only area of uncertainty concerns the judge’s assessment of the seriousness of the offence before the court (‘the subject offence’). The ‘standard sentence’ is defined as:
the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [see s5A(1)(b) of the Sentencing Act 1991]
The provisions then specify that those ‘objective factors’ are to be determined:
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending. [see s5A(3) of the Sentencing Act 1991]
It is not in doubt that those specifications apply to the identification of the hypothetical ‘middle of the range’ offence. The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence ‘taking into account only the objective factors’ as thus defined.
The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment. For the reasons set out in Part I, we would uphold that submission. In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.”
(My emphasis.)
72I refer to the matter of Brown (op cit) at first instance, where Champion J stated, at paragraphs 96-97 and paragraph 99, as follows:
“… Matters personal to a particular offender such as an offender’s age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending.
However, matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation, and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion can be relevant the assessment of the objective seriousness of the offence.
…
In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.”
73I also refer to Lugo (A Pseudonym) v R ([2020] VSCA 7), a Victorian Court of Appeal decision constituted by five judges. At paragraphs 25-26, the court stated:
“For the reasons given by this Court in Brown v The Queen, [[2019] VSCA 286] that comparative assessment was neither authorised nor required by the standard sentence provisions. The judge’s obligation to assess the seriousness of the subject offence was, the Court said, unaffected by the standard sentence provisions [at [7]]. Judges sentencing for standard sentence offences ‘should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability [at [55]].
The sentencing judge in R v Brown [(op cit)] had, likewise, undertaken a comparative assessment ‘taking into account only the objective factors’. The Court concluded that, although his Honour had gone beyond what was required by the provisions, this misapprehension had not affected his Honour’s assessment of the seriousness of the offending … .”
(My emphasis.)
74I also refer to s11A of the Sentencing Act 1991 which directs, as to the process of the fixing a non-parole period for a standard sentence offence or in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is for a standard sentence offence (see s11A(1)).
75Section 11A(4) of the Sentencing Act 1991 provides that, unless a court considers that it is in the interest of justice not to do so, the Court must fix a non-parole period for at least – relevantly – 70 per cent of the relevant term if that term is a term of twenty years or more, or 60 per cent of the relevant term if that term is a term of less than twenty years. The “relevant term” referred to in s11A(5) is defined to mean, inter alia, the total effective sentence referred to in ss(1)(b).
76In Brown (op cit), the Court of Appeal also examined the standard non-parole period scheme and in particular referred to the High Court decision of Muldrock v R (op cit),[3] and in particular, paragraphs 27-29. The Court of Appeal then stated, at pages 9-10 that:
[3]Muldrock v R (2011) 244 CLR 120.
“These passages may be distilled into a number of propositions, as follows:
1.The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.
2.In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
3.Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a) ‘without reference to matters personal to a particular offender or class of offenders’; and
(b) ‘wholly by reference to the nature of the offending’.
4.The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.
5.The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.
6.The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.
In the High Court’s view, therefore, the standard non-parole period provisions required only one assessment of ‘objective seriousness’. That was the assessment which was necessary in order to give ‘meaningful content’ to the legislative description of the ‘hypothesised offence’ as an offence ‘in the middle of the range of objective seriousness’. It was that assessment, the Court said, which must be undertaken ‘without reference to matters personal to a particular offender or class of offenders’ and ‘wholly by reference to the nature of the offending’.”
(My emphasis.)
77Consistent with the direction given by the foregoing authorities, I do take into account the standard sentence in relation to the offence of rape, but note that such sentence is to be treated as a “legislative signpost” and does not affect the established “instinctive synthesis” approach to sentencing.
78I should also add that I consider your prospects of rehabilitation are “good”. Indeed, although the offending involved two rapes, I do not consider specific deterrence to be particularly relevant, given that I have treated your criminality as really one continuum involving the two rapes on that particular night.
79I intend to convict you of both offences and sentence you to a period of imprisonment with a non-parole period. I take note of s11A of the Sentencing Act 1991 in relation to standard sentencing considerations relating to a non-parole period. Furthermore, I have perused sentences involving the standard sentencing considerations, but in the circumstances of this matter, I am going to order a sentence substantially less than the standard sentence, taking into account the matters to which I have made reference to.
80Bearing in mind the principles of totality and proportionality, I intend to cumulate part of one sentence with the other sentence.
Sentence
81In relation to Charge 2 on the Indictment, you are convicted and sentenced to four years’ imprisonment.
82In relation to Charge 3 on the Indictment, you are convicted and sentenced to four years’ imprisonment.
83I direct that one year of the sentence imposed in relation to Charge 3 be served cumulatively with the sentence imposed upon Charge 2.
84The total effective sentence is five years’ imprisonment and I direct that the minimum term to be served before being eligible for parole be three years’ imprisonment.
85I further declare that you have been in custody in respect of these offences, namely seventy days, and that they be reckoned as a period of imprisonment already served under the sentence, which is to be deducted administratively.
86I declare that, pursuant to the Sex Offenders Registration Act 2004, you are a registrable offender and that the length of the reporting period be fifteen years.
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