Director of Public Prosecutions v Levett

[2015] VCC 906

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00531
CR-13-00653

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEONARD LEVETT

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 June 2014
CASE MAY BE CITED AS:	DPP v Levett
MEDIUM NEUTRAL CITATION:	[2014] VCC 906

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Queen	Ms E. Finnigan
For the Offender	Mr D. Glynn

HER HONOUR:

1Leonard Levett, you have been found guilty by jury of two charges of rape involving the complainant, A, and in the separate trial you have been found guilty of two charges of rape in relation to the complainant, B.  The maximum penalty for rape is 25 years imprisonment. 

2In relation to the two charges involving A, the offending occurred in the following circumstances.  You gave A and her friend a ride in your car when you saw them hitchhiking on old Dandenong Road on the night of 15 April 1992.  That was a very short ride, but you dropped A’s friend at the intersection of Heatherton and Old Dandenong Roads and you continued to drive with A in the vehicle further along Old Dandenong Road.  A indicated where she wished to be dropped off and she exited your vehicle about ten minutes away from her home as she did not want you to know where she lived.

3As she walked along Lower Dandenong Road in light rain, you jumped out of the bushes on the side of the road.  You grabbed her from behind, you dragged her over logs and branches to a clearing where you forcibly raped her by introducing her penis into her mouth and that is the subject of Charge 1 on the indictment.  You then penetrated her vagina with your penis and that is the subject of Charge 2 on the indictment.

4You then took her shoes and placed them some distance away from her.  You warned her not to follow you and left her in the dark behind the bushes off the road.  She then gathered her belongings and walked towards her home.  She didn't go directly to her house, she went to a friend who lived just around the corner.  A was in a distressed and dishevelled condition, as noted by the friend and the friend’s mother.  A told the friend that she had just been raped.  Her clothes were taken and dried for her, and the friend rang the Centre Against Sexual Assault.

5As a result of that, A later on that night underwent a medical examination.  Swabs were taken from her body and the investigation by the doctor showed that she had multiple bruises and abrasions, including abrasions around her genital area and a split in the skin of the posterior fourchette of her vagina.  A also helped compile a face image of the man who had attacked her and on 13 August 2012, she identified you from a photo board compiled by police as the man who most looked like the person who attacked her.

6You were then charged with the offences following a DNA match when your DNA was placed on the database after your conviction on further sexual offending in 2010.  You admitted in your record of interview that you picked A up and you accepted that your DNA was found on her body.  You said that any sexual activity that occurred between you was consensual and that it was, in fact, A who initiated that contact.

7In relation to the second trial, the complainant is B.  On the morning of 26 August 1996, near the Yarra Trail at East Kew, B was walking her dog along the river.  She saw you approaching her.  You were smoking a cigarette which attracted her attention as it was unusual to see anyone smoking on that track.  You walked past her, then turned around and came up behind her.  She gave evidence that she saw you throw away your cigarette as you approached her.  She said that at any rate, when you came back behind her and began walking beside her, you were no longer smoking.  You began to talk to her and she was extremely nervous of your intentions.  You grabbed her by the arm and forced her at knife point to climb over a fence and forced her inside one of the empty sheds behind the fence.

8You penetrated her vagina with your fingers and that is the basis of Charge 1.  You then sexually penetrated her by introducing your penis into her mouth and after that you left her and she ran immediately to her father's workplace and described what had happened.  Police were contacted and they returned to the area and combed it thoroughly.  One cigarette butt was found on the walking path in the vicinity of the sheds, and DNA was able to be extracted from that butt.  B assisted in the compiling of the face image of the man who had attacked her. 

9On 25 July 2012, you participated in a recorded interview with the police after there had once again been a match of your DNA which had been obtained following a later conviction with the DNA on the cigarette butt found at the crime scene.  A search warrant was executed at your home and a number of photographs were seized, which were introduced at evidence during the trial to show what you looked like, what your appearance was at the time the offending occurred.

10You subjected both of these complainants to a terrifying experience, in relation to B in August 1996 and in relation to A on 15 April 1992.  The attack on A involved you dragging her by force, threats, terror and forceful violation in terrifying circumstances.  The attack against B was one perpetrated by a complete stranger armed with a knife in an isolated situation where there was no hope of rescue, and it involved the terror and humiliation of having to submit to your attack for fear of being killed and she told her father that she thought she would die.

11In addition to this offending, after some 22 years for A and 18 years for B, each of the complainants were forced to relive the experience through the trial process.  They gave lengthy evidence and were cross-examined at length which caused, in particular, A, a great deal of distress.  She was repeatedly called a liar and accused of initiating sexual contact, leading you into the bushes, and of making up the horrendous allegation of rape because she was ashamed of having had sex voluntarily with a stranger.

12B was also cross-examined at length but your defence did not involve her being called a liar.  These attacks perpetrated by you are egregious examples of rape by a stranger.  Examples of what women are warned about and of which most live in dread for most of their years from teen age on.  The three victim impact statements were tendered on the plea. 

13Tendered as Exhibit A was the victim impact statement declared by A.  She was not present in court and her victim impact statement was not read out loud but it is a document which describes what she calls "massive impact" on her life.  She writes that she struggles to go to work, and has to call in sick frequently as she cannot keep her emotions under control.  She suffers panic attacks in all sorts of situations, both at work and socially.

14She finds it very difficult to leave the house, which is having a great impact on her work capacity, and her relationship with her partner.  The constant flashbacks she suffers affect her intimate relationships to this day.  She writes that following the rape, she failed Year 12.  She was halfway through Year 12 when that occurred, and she suffered a great loss of self-esteem and trust in herself and others.

15She writes that she has not slept well in 22 years, only two to four hours a night.  She constantly relives the attack which intrudes on her life some 20 to 50 times a day.  A was at the time an 18 year old student with her life before her and her life has been considerably diminished by your attack.

16Tendered as Exhibit B on the plea was the victim impact statement of B in relation to the second indictment.  B read her impact statement to the court and she described how she was a 21 year old halfway through her graduate course in nursing.  She was confident and fit and full of optimism for her future.

17Following your attack, B indicated that she struggled through her graduate program, exhausted due to the extreme anxiety she experienced and always worried as she thought her memory had been affected by her experiences.  In fact she suspended her work as a nurse over the past few years and has just returned to her chosen career on a casual basis.  B indicates in her victim impact statement that the attack affected her enjoyment of running and hiking, which were her favourite activities and she has suffered uncontrollable fear and severe panic attacks. 

18She told how the trauma of the rape has impacted every single day of her life since she was contacted by police two years ago after they identified her attacker.  She further expressed her concern that the trauma affects not only her but it spreads through her family and friends.  She spoke of her own children and how her care for them has been affected by her emotional and physical state.

19She has also expressed the sadness that she feels for her parents, who have witnessed their own daughter experiencing such pain.  She concluded by saying that although it is not in her nature to focus on the negatives, the impact on the rape has been profound and unfortunately she will continue to feel the full force of it for the rest of her life.  A victim impact statement was also tendered by her father as Exhibit C.  He read his statement aloud.  He read of how time stopped for him on 26 August 1996, when he saw his daughter rushing into his workplace having been raped at knifepoint and telling him of the terror and how she believed she was going to die.

20He related that he relives that moment every time he enters his workplace, but he has sought to stay strong for the family despite his underlying anger at the perpetrator of this attack on his daughter.  He read that he had consulted a psychiatrist for some time but has managed to survive this ordeal relatively intact with the support and love of his wife, daughters, sons and friends although he is still taking antidepressants.

21From these documents, it is clear that the effect of the violent rapes that you committed on these two very young women - B was 21 and A was 18 and still a schoolgirl, is very widespread and lasting not only on the complainants but on their families, friends and partners.

22Mr Levett, you are a married man and have two children, a daughter of 20 and a son of 19.  The first of these offences for which I am sentencing you today occurred just before you were married and as I understand it, you were living with your wife at that time because the vehicle you used to pick up the complainant A, you told her was your wife's car.

23You are now aged 50, and you started with a very difficult childhood.  You were one of five children raised in a country town in Western Victoria.  Your father worked on the railways and drank excessively as part of that working environment.  In addition to his alcohol abuse, he was frequently violent to all members of the family.  You, Mr Levett, left school at 14 unable to read and write and you had by that stage suffered sexual abuse at the hands of an older boy when you were about eight years old which would appear to have had a lasting effect on you.  A psychiatric report written by Mr Patrick Newton, dated 13 May 2014, was tendered as Exhibit 1 on the plea.

24In his opinion, Mr Newton states that your early sexual abuse undermined your confidence in your masculinity and that you had throughout your life from early adolescence engaged in promiscuous and indiscriminate sexual encounters with a large number of women in order to address these feelings.  These encounters continued even after you had established a stable relationship with your wife.  Indeed, I note that at the time of - at the second of these offences, involving B, you had already married.

25Mr Newton goes on to say that your offending may be understood as an intense acting out of the tendencies that you had in order to compensate for your doubts about your sexual adequacy, and that by forcing your sexual attentions on unwilling participants, you were able to demonstrate your power and dominance over them as well as your sexual prowess, thus compensating for your underlying inadequacy and self-doubt.  This may be some explanation as to why a man who is apparently successful and well-liked, even loved, in other areas of his life could commit these random and violent rapes.

26You are experiencing a number of symptoms of anxiety, stress, preoccupation and interpersonal withdrawal.  Mr Newton indicates these symptoms are sufficient to indicate that you meet the diagnostic criteria for an adjustment with mixed anxiety and depressed mood.

27This he indicates in his report is largely related to your legal matters, your coming to terms with your conviction and your distress at separation from your wife and family.  However, your elevated stress responses, he said, indicate an underlying vulnerability which could be traced back to your experience of sexual abuse as a young person.  Tendered as Exhibit 2 on the plea were a bundle of letters written on your behalf which indicate that you were a person whom your friends and relatives have always called upon for assistance in the case of any emergency or problem.

28They indicate that you are a hard-working and extremely family orientated person and you are devoted to your wife and children.  Your wife writes of your happiness as a family, and your great assistance to her own parents when two of her siblings died.  She writes that your children are finding it very difficult to adjust to life without you.  Your niece, your brother-in-law, friends and a sister-in-law have all written most highly of you as a family man and a human being.  They write that although now they are aware that you have been convicted of rape, they cannot associate that fact with the person they have known and loved for many years.

29From what I can gather from these testimonials as to your character, and the obvious genuine love and affection that people hold for you, you must have a completely different side to your personality from the one which caused you to inflict so much pain and suffering on your victims and consequently their families.  You have shown a heartless disregard for two young women you selected randomly to satisfy your own perverse objectives while being on the other hand a loving and protective parent to your own children.

30Your counsel has made submissions that I should take into account the fact that you will suffer greatly while you were prison due to your concern for your family who will be left without support while you are in prison.  He submits that you will suffer over the uncertainty of their future, as through your own actions you have left them in a very difficult situation.

31I take that into account, however I take it into account and consider it in relation to all the other factors involved in sentencing you in relation to these offences.  Your counsel also made submissions in mitigation that you had a strong work ethic.  You had worked for Brambles for some 18 years.  You set up your own business in Dandenong carrying on the experience in paper shredding that you had gained at Brambles to start a similar business.

32You also had a program for assisting and taking on disabled people for training in that business when it was running.  The business became quite successful and with a partner who was in charge of finances and book-keeping, you sold off a part of it.  However, your business partner absconded taking all the money that had been paid in relation to the sold-off portion which was valued at over a million dollars.  It was during this period of extreme difficulties with your business that you were arrested on 25 July 2012 in relation to these offences, and as I understand it, the business has now been totally wound up.

33These offences occurred in 1992 and 1996, so there has been an extremely long delay before your arrest in relation to these matters.  However, the time that has lapsed was not offence-free, and you were convicted on two charges of indecent act with a child who was the 14 year old daughter of a dairy farmer in the Shepparton area with whom you had a business relationship.

34As a result of this conduct, you were placed on a sex offenders’ registration order, and your DNA was placed on a databank and you failed to notify the authorities of a change of the registration address of your business and you were also dealt with for that offence against the Sex Offenders Registration Act. It was as a result of this offending that your DNA found its way to the databank and resulted in the resolution of these two historical matters.

35You have had three previous appearances before the courts before you committed these offences, and one of them involved some violence.  They were dealt with by way of fines, and the offences occurred in 1982, 1984 and 1990.  Your counsel also made submissions that these matters were not ones which I could find were premeditated and although there is nothing to prove, they were premeditated, I note that in the offence involving B, you were walking on the river bank armed with a knife.  This of course leads to grave suspicion.  It is not sufficient for me to say that you went to the riverbank however with the intention of committing an offence.

36He also urged me to take into account your ongoing family support and the fact that this your first term of imprisonment.  I take all those matters into account, in particular in relation to the non-premeditation.  I have not added that as an aggravating factor.

37I now turn to the other matters I am required to take into account pursuant to the Sentencing Act in this state. Firstly, the principle of general deterrence. The sentence I impose on you must act as a deterrence to others who seek to prey on defenceless women using their brute strength or a weapon to subordinate their victims to their will. And that when such people are found to be responsible for such acts, they will face very serious consequences.

38Secondly, I take into account the principle of specific deterrence.  That is that any sentence I impose must deter you from committing any such offence in the future.  This is also an important part of the sentence I impose, because these are two serious offending on two different complainants which occurred some four years apart and were followed by further offending of a sexual nature some nine and a half years later.  Although it was of a far lesser seriousness.

39It is clear that you have a propensity to offend in this way, and Mr Newton in his report which I referred to, indicates that your risk of re-offending is moderate to high and that you have a compelling need to engage in a comprehensive program for violent sexual offenders at the earliest possible opportunity.  I take those matters into account.

40I am further required to denounce your conduct on behalf of the community and I do so absolutely.  The assault and rape of young women in this community is as I indicated before what parents dread for their children and what young girls are taught to fear and guard against from the time they themselves are children.  These acts are abhorrent and offend gravely against the principles and values of the society in which we live.  I am further required to weigh up the matters submitted in mitigation and to impose just punishment in all of the circumstances.

41In so doing, I weigh up the matters put on your behalf against the seriousness of your offending, the effect it had on the complainants and the matters that I have just referred to.  I add to that side of the balance that you have demonstrated a total lack of remorse.  From the first charge on the second indictment, you will be sentenced - or the second charge on the first indictment, sorry?

42MS FINNIGAN:  The second charge on the first indictment.

43HER HONOUR: Sorry, the second charge on the first indictment, you will be sentenced as a serious sexual offender for the purposes of 6 and 6(e) of the Sentencing Act. With respect to those offences, I am required to regard the protection of the community from you as the principle sentencing purpose and with respect to cumulation, s.6(e) applies. However, assisted by submissions from both your own counsel and counsel representing the Director of Public Prosecutions, I consider it neither necessary or appropriate to achieve that purpose by imposing a sentence that is longer than that which is proportionate to the gravity of each of the relevant offences and accordingly, I do not do so.

44Further, in deciding on the duration of the sentence that you must serve, I have applied the principles relating to concurrency, cumulation, totality and proportionality.  I have determined that there must be cumulation between the two charges on each indictment and a further cumulation between the two indictments in order to adequately reflect the total criminality involved.  I am going to ask you to stand please Mr Levett.

45In relation to the offences on the first indictment, on Charge 1, rape, you are convicted and sentenced to eight years imprisonment.  On Charge 2, rape, you are convicted and sentenced to eight years imprisonment.  I order that one year of the sentence imposed in relation to Charge 2 be served cumulatively on the sentence imposed in Charge 1.  The total effective sentence on this indictment is nine years imprisonment.

46In relation to the second indictment, on Charge 1, rape, you are convicted and sentenced to eight years imprisonment.  On Charge 3, rape, you are convicted and sentenced to eight years' imprisonment.  I order that one year of the sentence in Charge 3 be served cumulatively on the sentence imposed in relation to Charge 1.  The total effective sentence for that indictment is nine years imprisonment.  I then order that four years of the sentence on the second indictment be served cumulatively on the total effective sentence imposed in relation to the first indictment.

47The total effective sentence for both indictments is 13 years' imprisonment, and I order that you serve nine and a half years before being eligible for parole.  I further declare the 89 days of pre-sentence detention be deemed time served and that that fact be entered into the records of the court.  And by virtue of my sentencing you today, you become a registrable offender pursuant to the Sex Offenders' Registration Act and you will shortly be handed a form to be signed which acknowledges that you have received notification of your reporting obligations.  You will, according to that obligation, be required to comply with those obligations for life and I think that completes it.  Are there any further orders sought, or any difficulties?

48MS FINNIGAN:  Not in relation to this matter, Your Honour, but there is a further matter that I would seek to raise in relation to a different case if I can mention that when the court is clear.

49HER HONOUR:  The different what?

50MS FINNIGAN:  In relation to a case, a different case to this one. 

51HER HONOUR:  All right, nothing else on your behalf, Mr Glynn?  Ms Finnigan?

52MS FINNIGAN:  Perhaps if the link can be terminated.  It's in relation to the matter of Woodgate, sentenced yesterday.

53HER HONOUR:  All right, so - that ends the sentencing in this matter.  Thank you, B.

54COMPLAINANT:  Thank you.

55HER HONOUR:  And I'll ask you to take Mr Levett out - wait a minute, before you do, we'll just get - I'll ask you to sign - my Associate will bring down these documents for you to sign which will inform you of your - which notes that you have been of your obligations.  And I thank the people in court for remaining dignified through the proceedings.  Thank you.

56All right, that ends the matter of Levett.

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