Director of Public Prosecutions v Leon Pompei

[2022] VCC 567

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEON POMPEI

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 April 2022
CASE MAY BE CITED AS:	DPP v Pompei
MEDIUM NEUTRAL CITATION:	[2022] VCC 567

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:

Legislation Cited:  Sex Offenders Registration Act2004 (Vic); Crimes Act 1958 (Vic); Crimes Amendment (Sexual Offences) Act 2016 (Vic)

Cases Cited:  McPherson v The Queen [2021] VSCA 53

Sentence:Seven years imprisonment with a minimum to be served of four years and six months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr P. Smallwood

HIS HONOUR: 

Charge 1	Common Assault, contrary to Common Law	5 years
Charge 2	Rape, contrary to s38(1) Crimes Act 1958[1], as amended by the Crimes Amendment (Sexual Offences) Act[2]	25 years

[1] (Vic).

[2] 2016 (Vic).

1Leon Pompei, you were found guilty by a jury on 24 February 2022 of one charge of Common Assault and one charge of Rape on Indictment K11959722.2.  The maximum penalties for these offences are:

2Rape is a Category 1 offence.  It is not submitted that you fall into any exception which would permit anything but a period of imprisonment with a non-parole period to be imposed.

3Further, the crime of rape carries a standard sentence of 10 years.  Further to that, the Court must fix a non-parole period of not less than 60 per cent of the total effective sentence unless it is in the interests of justice not to do so.

4You have admitted your prior criminal history.  I do not consider it particularly relevant to the sentencing task as it does not involve relevant offending.

5The Crown does not seek to have you registered under the Sex Offenders Registration Act.[3] In the absence of an application, I do not have the power to make an order; and in any event I do not intend to make such an order.

[3] 2004 (Vic).

Circumstances of Offending

6The facts upon which the jury found their verdicts may be briefly stated. 

7At 6.09 pm on 5 May 2019, you went to the Presidential Suite, a registered brothel in Seaford.

8The Presidential Suite is a strict 'safe-sex' establishment, requiring the client to wear a condom.  Signage is located around the brothel which reads,  ‘It is illegal to remove a condom, removing a condom without consent is sexual assault, the establishment will call the Police and report any customer who removes condoms.'

9You selected to engage the sexual services of Rachel Kelly.[4]

[4] A Pseudonym.

10You paid a service fee at the reception.  You also requested and paid for a 'deluxe package' which was described as a 'girlfriend experience' which included vaginal penetration with a condom, oral sex and digital penetration of Ms Kelly.  This was paid directly to Ms Kelly.  

11You laid on the bed naked, on top of Ms Kelly, and engaged in consensual penetration of Ms Kelly's vagina with your fingers and mouth.

12Ms Kelly could feel your erect penis and on two occasions told you that you needed to put a condom on.

13Your behaviour changed suddenly and you grabbed Ms Kelly around the throat, forced your tongue down her throat and strangled her.  You then inserted your penis into her vagina.  You were not wearing a condom.  Ms Kelly felt you thrust a couple of times before she managed to push you off. 

14On 5 May 2019, Dr Janine Rowse conducted a forensic examination of Ms Kelly.  Dr Rowse did not find bruising around Ms Kelly's neck but referred her to the Emergency Department at the Monash Medical Centre on her self-report of soreness and injury.

15In the record of interview on 6 May 2019, you admitted that you knew the rules about wearing a condom and observed the signage at the brothel about wearing a condom.  It is evident that the jury rejected your denials of assaulting or raping Ms Kelly. 

16You were charged on summons and then were bailed.  You were remanded in custody after the verdict and you have now served 64 days' pre-sentence detention not including today.  I will take that time into account. 

Objective Gravity and Moral Culpability

17I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

18The maximum penalty, the fact that it stands as a category 1 offence, and as a standard sentence with a presumed non-parole period, all speak to the seriousness of the crime of rape.

19I turn now to a consideration of the standard sentencing scheme:

(a)The scheme provides a standard sentence of 10 years on charge 2, that is of rape;

(b)The scheme also provides for a standard non-parole period of at least 60 per cent of the sentence unless I consider it is not in the interests of justice to do so;

(c)The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;

(d)Objective factors exclude the consideration of matters personal to you as an offender or to a class of offenders.  Rather, it is determined wholly by reference to the nature of the offending;

(e)This does not limit the matters which I must or may take into account in determining the appropriate sentence.  Nor is it intended to affect what is known as the instinctive synthesis process.  The standard sentencing scheme may be considered as a guidepost in the sentencing consideration.  However, it is neither determinative nor a starting point from which I must simply remain, or go up or go down in my sentencing consideration; and 

(f)In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.  In this way, it is an additional factor to consider in the sentencing process. 

20Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

21The Court of Appeal has stated that rape constitutes a physical, emotional and psychological violation of the victim.  Your act was accompanied by a concurrent act of strangulation.  You did not wear a condom (which goes to the heart of this offending, and to the negation of consent); thereby putting the victim at risk of sexually transmitted infections and pregnancy.  The victim repeatedly told you that you had to fit a condom before engaging in sexual intercourse.  The victim was entitled to feel safe in her workplace.  

22I accept that the offending was not planned; rather, it was impulsive and, as the Crown conceded, of short duration (notwithstanding the perception of the victim that you strangled her for what seemed like minutes).  I accept that the assault and the rape were committed concurrently and the assault informs the seriousness of the rape.  I accept that you did not ejaculate.  

23It is apparent that there was no bruising or other manifest injury left on Ms Kelly's neck or body.  Nevertheless, your actions terrified her, and her distress was immediately apparent to the other workers at the establishment.  The injuries Ms Kelly suffered and still suffers today were graphically set out in her impact statement.  It is apparent that she has suffered extensive and ongoing psychological trauma, which has impacted her ability to work, her finances, and her social and family life. These psychological injuries have had physical manifestations.  Your victim is still receiving counselling.  In short, your criminal conduct has had a devastating effect on Ms Kelly's health, well-being and life in general.

24The objective gravity of your offending must be considered serious.  The Crown sought to categorise your offending as 'mid-range'.  Mr Smallwood submitted, in accordance with the observations made by the Court of Appeal in McPherson,[5] that the circumstances in which the crime of rape may be committed are so broad as to make the notion of a mid-range difficult to identify.

[5] McPherson v The Queen [2021] VSCA 53.

25I have identified the key circumstances of your offending which are the factors which must be taken into account in assessing the seriousness of your offending.  I will not label your crime other than to say that your crime of rape is a crime of violence which was accompanied by further violence.  Your offending is serious and your moral culpability for your offending is high.  You have shown no remorse. 

26Your offending must be met by principles of deterrence and denunciation. It goes without saying that your offending must be met by a term of imprisonment with a non-parole period.

Personal Circumstances

27You are 51 years old and were born in August 1970.

28You are the youngest of nine siblings.  You have reported that you do not have any contact with your relatives, and it has been many years since you last saw your siblings.

29You left school in Year 11.  You studied at TAFE to be a fitter and undertook an apprenticeship at Kirby Engineering working with car equipment.  You commenced employment at Fosters Australia Pty Ltd in 2002 as a process engineer.  You left the company in 2008 following workplace harassment and bullying whereby you developed post-traumatic stress disorder.  You then worked at Esso (that is ExxonMobil) for two years.  You reported you continued to experience harassment and bullying.  

30Your father passed away in 2009 and your mother in 2012.  One of your brothers also died in an accident.

31You were married in 2001 and divorced in late 2009/2010 due to issues resulting from the workplace bullying and harassment.  You have one son from the marriage.

32Your son is around 12 or 13 years old and resides with his mother.  You report that you have had no contact with him since September 2019.

33Since 2012 you have worked in occasional part-time jobs.  Prior to your conviction, you were self-employed selling marine paints.

34You were living alone in your work shed that you rented in Mordialloc and you had a girlfriend for around eight months before you were remanded.

35You have been diagnosed with depression, PTSD, anxiety, neuralgia, fibromyalgia, type 2 diabetes mellitus and hypertension.  You have been on a disability support pension due to the chronic fatigue associated with your fibromyalgia since 2020.  You also have a history of poor physical and mental health, alongside a history of cognitive difficulties which were addressed in a neuropsychological report by Kimberley Meates and Dr Judy Tang dated 15 July 2020.

36You have previous court appearances for insulting words to police and damaging property.  This offending occurred during your adjourned undertaking for damaging property.

37Although this offending breaches your adjourned undertaking, I do not place any particular weight on your previous offending.

Sentencing Submissions

38Mr Smallwood who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

(a)The circumstances of your offending;

(b)The need for total concurrency between the charges;

(c)That you have high rehabilitative prospects, with no prior or subsequent history of sexual offending, therefore, less weight should be given to specific deterrence and community protection;

(d)Next, the hardship you are likely to experience in custody as a consequence of your history of poor physical and mental health and your medical and cognitive difficulties.  In this respect, Mr Smallwood submits that your psychological conditions ought to be used to mitigate your sentence on the basis that it may mean that a given sentence will weigh more heavily you than it would on a person in normal health.  Ms Guesdon who prosecuted the trial and plea agrees, but submits that the mitigation you receive from this consideration should be limited; and

(e)Finally, the delay between the date you were charged and the trial being heard, with three years having passed since the offending was committed ought be taken into account in mitigation.

39Ms Guesdon who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a non-parole period.  The Crown submitted that the objective offending is in the mid-range of seriousness, and that the victim was in her workplace where she was entitled to be safe; however, the Crown accepted that the offending was opportunistic, short in compass and absent of other potentially aggravating factors.  The Crown accepts that you have good prospects for your rehabilitation.

40I take these factors into account and I also take into consideration that your time in custody has been affected by the COVID-19 lockdowns.  The immediate effect of any lockdown is a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of all visits. 

41The other more insidious effect of the pandemic and lockdowns has been the stress caused to you and other prisoners and the isolation - that is the fear that the pandemic would penetrate into the prison system, and so isolation has been extensively used by prison authorities as a strategy to limit close contact.  I shall take this into account as a mitigating factor. 

42I note in this regard that you have received no personal visits to date but that you have had only some telephone contact with your girlfriend and a couple of friends.

43Moreover, I accept that this is your first time in custody and that it has been made more difficult, taking into account the COVID lockdowns.  I accept that the first two months of the custodial environment up to the plea date would have been confronting and difficult.  I note that you have not received your full range of medications.  I recognise that COVID restrictions have added an extra layer of difficulty to your adjustment to the prison environment.

44In my view, your lack of substantial prior offending and your reasonable work history contribute to my conclusion that you have good prospects for your rehabilitation. 

45I have taken into account, albeit to a limited extent, the fact that your psychological conditions will mean that your time in prison is likely to be harder on you than a prisoner in normal health. 

46Ms Guesdon referred to a number of sentences from the Court of Appeal and the County Court.  I have considered those cases.  In the end, I cannot be unduly influenced by sentences imposed in those cases.  I must sentence you in accordance with the objective circumstances of your offending, your moral culpability, the applicable sentencing principles and the circumstances personal to you.

47I must take into account the fact that charge 1 and charge 2 occurred together.  In its sentencing submissions, the Crown relied upon the commission of charge 1 to inform the seriousness of the offending on charge 2.  In my view, it is impossible to escape this conclusion.  Accordingly, I have tried to sentence modestly on charge one and to cumulate only a small amount as I consider the real seriousness of your overall offending is reflected in the sentence on charge 2

Orders

48Accordingly, the sentencing orders I make are as follows:

49On Charge 2, the charge of rape, you are sentenced to six years and 10 months' imprisonment.  I order that is the base sentence.

50On Charge 1 of common assault, you are sentenced to four months' imprisonment.  I order two months of that sentence be cumulated on Charge 2.  That leads to a total effective sentence of seven years with a minimum to be served of four years and six months.

51I declare that a period of 64 days' pre-sentence detention not including today be reckoned as already served. 

52I recognise that the sentence imposed is under the standard sentence of 10 years but it should be clear from the reasons that I have already enunciated that I take into account Mr Smallwood's submission that the crime of rape can be committed in many and wide circumstances.  The formulation of a mid-range is a very difficult notion for this crime. 

53Accordingly, taking account all of the circumstances of the offending and taking into account the standard sentence provisions as one of the sentencing factors, I have formulated the sentence as I have.

54I recognise that Rachel Kelly was present for the sentencing in this matter and I commend for her courage in coming forward and reporting this matter.  Thank you.  I will adjourn now.

55MR SMALLWOOD:  As the court pleases.

56MR MIGHELL:  As the court pleases.

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