Director of Public Prosecutions v Lithgow

[2023] VCC 1656

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00046

DIRECTOR OF PUBLIC PROSECUTIONS

v

James LITHGOW

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JUDGE:

Dalziel

WHERE HELD:

Ballarat (Trial)

Melbourne (Plea and Sentence)

DATE OF HEARING:

22 August 2023

DATE OF SENTENCE:

15 September 2023

CASE MAY BE CITED AS:

DPP v Lithgow

MEDIUM NEUTRAL CITATION:

[2023] VCC 1656  

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Guilty verdict – Sexual Assault – Rape – Standard Sentence – Offending occurred at an Airbnb – Employer, employee relationship – Excellent prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Cheung v The Queen [2001] HCA 67; 209 CLR 1; DPP v Elfata [2019] VSCA 63; DPP v Frank [2021] VSCA 163; DPP v Schmidt [2022] VCC 1429; DPP v Norford [2023] VCC 1246; Clarke v The Queen [2022] VSCA 89; DPP v Butcher [2023] VCC 1224; Barbar v The Queen [2022] VSCA 122

Sentence:                  Total effective sentence of 6 years and 6 months. Non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr N. Batten (Plea) Ms H. Lethlean (Sentence)	Office of Public Prosecutions
For the Accused	Ms M. O’Brien	Furstenberg Law

HER HONOUR:

1James Lithgow, on 8 June 2023 a jury found you guilty of two charges of sexual assault and two charges of rape.  You were acquitted on the charges of false imprisonment and attempted rape.

2The offences occurred in the evening of 27 September 2018.  At the time you owned a property outside Halls Gap.  A large house on the property was advertised by you on Air BnB.  This was your principal business at the time.

3The house is located on a block of land that is largely scrub and bush.  Whilst it is on a main road, and next to a caravan park, most of the property is in a fairly natural state.  The main road is not visible from the area in front of the house.

4You managed the property yourself.  You had a caravan set up some 30 meters from the main house.  You had put decking and screens around parts of the caravan, and set up a sink and washer and dryer.  There was no toilet in place, but there was and is a toilet block in the neighbouring caravan park.

5You sometimes needed assistance with cleaning and preparing the house in the space of a few hours between the checkout of one set of guests and the arrival of the next.  The house slept 11, and so there was sometimes a lot to do.

6You told the police that you did not use a local cleaner, but rather would employ a friend or people found via Gumtree.  You said you would pay them $25 an hour (or around about), and would pay their travel by train if needed.  You provided food and a place to stay, and would sometimes show them around the area. 

7The complainant in this case arrived in Australia on 3 September 2018, from Japan.  She was 19 years old.  She had limited English skills – she said she could hold a basic conversation, and understand perhaps half of a movie in English.  She was travelling with her boyfriend, Mr Suzuki.  They were both here planning a working holiday. 

8The complainant put an ad on Gumtree looking for work, on 22 September 2018.  You saw the ad and contacted her.  You told her that you were looking for someone to do cleaning work, at your Air BnB accommodation near the Grampians.  You told her the rate of pay (around $25 per hour), and that there would be free accommodation and food.  She responded that she was interested, but raised concerns about travel and how long she would be there if she took the job.  After some messaging back and forth, you contacted her on the evening of Wednesday 26 September 2018, regarding work that weekend.  She contacted you when she read the message in the morning of Thursday 27 September 2018, and agreed to take the job.

9Between you it was arranged that she would travel up to Ararat by train that day, you would pay for her ticket, and you would collect her from the Ararat train station. 

10The Complainant caught the train leaving Southern Cross at 2.16 pm, arriving in Ararat around 4.40 pm.  You collected her in the van you were driving, and on the way to Halls Gap stopped at a supermarket and hardware store.

11You purchased wine and some kangaroo steaks for dinner that evening, and some cleaning products.  The drive over to your property from Ararat took around 30 to 45 minutes.  Once there, you asked the complainant to do a bit of cleaning around the caravan, which she did.  She took some photographs of the area outside the caravan, and one of you.  She was messaging her boyfriend, via an app called LINE, and she sent him the photos and a little about you, saying she thought he would get along with you. 

12You and she drank some wine and sat by the fire chatting.  She said that the amount that she drank was 1 to 2 to 3 glasses, or maybe half a bottle.  The glasses shown in the photos are large, but she was not asked how full each glass was.  She said she felt drunk, she was not a strong drinker and that when you and she walked to the toilets, she had to drag herself to walk. You also were affected by alcohol. 

13On the way to the toilets you put your arms around her, from behind, and touched her breasts over her clothes.  You also touched her buttocks.  This conduct founded Charge 1.  The complainant gave evidence that she was so shocked she did not say anything.  You described this as “normal drunken behaviour” on the background of feeling happy and good, talking and looking at the sky by the fire.  By their verdict I consider the jury rejected your statement that the complainant hugged you back, was holding your hand, and kissed you. 

14Having returned from the toilet, the complainant described you gently pushing her onto a chair by the fire, kneeling before her, lifting her clothes then licking or kissing her breasts, in particular her left breast.  The jury found you guilty of sexual assault in respect to this conduct, Charge 2.  The complainant said in her evidence that she felt sick but could not say anything, that it was hard to know what to say, in English.  She rejected the suggestion that she told you it felt nice, or that she made any noise to indicate that she was enjoying this contact.  You accepted this conduct occurred, but you said it was consensual. 

15By this time the complainant had said nothing to indicate willingness to engage in sexual activity.  She was passive, due to shock and not knowing what to say.

16You led her into the caravan.  You put her on the bed and once you were both unclothed you performed oral sex on her, inserting your tongue and fingers into her vagina.  You admitted that conduct, but said it was consensual.  The complainant said this conduct by you made her feel sick or yucky.  You had not asked her if you could do this.  The oral and digital penetrations founded Charges 4 and 5.

17You said, and the complainant agreed, that at some she point said that she had a boyfriend and did not want to have sex.  You said that you then stopped any sexual activity, and to give force to the jury’s verdicts on Charges 6 and 7 I will accept that to be the case.

18You said that when the complainant mentioned her boyfriend, this was the first indication you had that she did not consent.  The jury must have concluded, at the least, that if you did believe that she was consenting to the acts founding Charges 1, 2, 4 and 5, your belief was not reasonable.

19The evidence suggests that this sexual activity occurred around 10 pm.  You went to sleep and the complainant, after resting for a time on the edge of the only bed in the caravan, moved to a sofa where she dozed.  She then contacted her boyfriend, via LINE, at 2.09 am.  She said she wanted to go home, quickly. 

20Mr Suzuki saw her message just before 3 am.  They spoke, via the app, and she told him you had raped her.  They discussed what to do and decided that she would stay there at your property, until he could come and collect her.  He caught a train at around 8 am to Ararat, took the bus to Halls Gap and by persistence finally located your property.  He arrived at the main house at around 11 am, and knocked on the door.  The Complainant answered.  She looked very anxious. 

21You offered to pay her for her work, but had no cash on you.  You offered to send them money, but both were reluctant to give you any contact details.

22Mr Suzuki took the complainant to the caravan park next door.  At the caravan park the police were called, and the investigation began.

Personal Circumstances

23You are now 46 years old. You were born in Mount Gambier, South Australia to a loving and stable family and were raised in northern Tasmania. Your father worked as a farmer’s representative who liaised between farmers and companies to sell produce, and your mother was a nurse and midwife. Your parents are still married and have now retired in Tasmania.

24You are the second oldest of four siblings. You have one older brother and two younger sisters who have been positive role models in your life. Throughout your childhood, you were closest to your youngest sister. She described in her character reference to the court that you were consistently caring and protective of her. She now works as a lead social worker and you have remained close with her despite living in different states.

25You completed primary and secondary schooling in Tasmania. You stated that you had adequate friendships and were not subject to teasing or bullying. Towards the end of your schooling you underwent an educational assessment because of possible learning difficulties but denied problems with literacy or numeracy. You did however state that you were best at the manual or practical subjects. After completing school, you completed a three-year apprenticeship in cookery and gained employment as a chef.

26You worked initially in Launceston before moving to Melbourne. You then spent some time travelling overseas to New Zealand and Canada before returning to Australia where you lived in Byron Bay and Melbourne. You easily found employment as a chef.

27You ceased working as a chef around 12 years ago because you grew tired of the lifestyle and you developed a business running backpacker hostels. In 2017, you purchased a property in Halls Gap and began to lease it for short term rentals for larger groups. It is at this property that the offending occurred.

28Your business in letting this property was successful.  You provided service and accommodation garnering positive reviews, leading to the platform Air BnB giving you a “super host” rating in mid 2018.  This increased the profile of your property on Air BnB, and thus improved your business further.  A graph showing the rate of Air BnB bookings from mid 2018 shows a significant increase in the bookings of your property from that date to April 2022.

29You like outdoor activities such as bushwalking and kayaking.  You have some good friends, and prefer one on one time, and spending time alone, rather than larger group events.  You have enjoyed making music, but have retreated from this creative outlet in the face of the stress and anxiety about the legal proceedings.

30You have had some relationships with women, but have never married or become engaged.  One of your former partners provided a thoughtful and impressive letter about you, for the plea.

31You first began drinking alcohol when you were 19, doing so more regularly in your 20s and 30s.  You would not drink every day, but would sometimes binge drink.  You were mainly a social drinker.  You had reduced your alcohol intake over the last 6 to 7 years, so that you would drink only 1 or two standard drinks a week.[1]

[1]Dr Sullivan [26]

32You have tried cocaine and some other drugs, but once you returned to Australia you were not a regular user of drugs.  You had smoked Cannabis for some 6-7 years in your 20s, and I note a court appearance for possession of that drug in 2017, for which you received a small fine.

33Dr Sullivan interviewed you and prepared a report for the plea.  He noted a history of anxiety, commencing when you were a teenager.  You reported that by the time you were 17 you experienced significant social anxiety, and would feel that people were looking at you.  You were sensitive to anger, and to abrasive or over the top personalities.  You did not like large groups or heavily populated areas such as shopping centres.  You have had bouts of low mood, which sometimes lasted for months, but not to the point of preventing you functioning.

34In the context of the prosecution of these charges you have occasionally felt suicidal, but have been able to discuss this with your sister.  At the time of the assessment by Dr Sullivan you were experiencing negative symptoms related to the stress of your situation, facing imprisonment, and concern about incarceration and your parents.  You had recently started taking anti-depressant medication, with some benefit.

35Dr Sullivan considered that you most likely had a pre-existing social anxiety disorder, which was mild in severity, and that more recently you had an adjustment disorder with mixed anxiety and depressed mood.[2]  The current adjustment disorder is connected to your legal situation and the anticipated imprisonment.[3]

[2]Forensic report of Dr Danny Sullivan dated 7 August 2023 [51].

[3]Ibid, [53].

36You have a limited criminal history, with no prior allegations of sexual misconduct. 

37References from your family and friends speak of your good character. You are described as hard working, a trusted family member and friend, and as someone who makes efforts to care for others.  In one, your brother-in-law describes the impact of these charges hanging over your head.  Your plans and hopes for the future have been on hold, and you have appeared distressed, anxious and with periods of low mood.  You have become more isolated.  Your family remain strongly supportive of you.  Your sisters express similar information and assessments, as do your friends.

38I take into account in your favour that as a man of 41 years of age, you had no relevant or significant criminal findings of guilt against you.

Gravity of Offending

39The Complainant was far away from her home country, and her boyfriend.  The trip to Ararat by train was more than two hours, then the car trip to Halls Gap was another 30 to 45 minutes.  She had no means of transport of her own, other than walking.  She spoke limited English, was 19 and it seems from her evidence rather unworldly.  She was encumbered by her suitcase.

40There was, of course, the caravan park next door, which was quite close to your caravan.  Objectively, the complainant had the capacity to leave and to make her way to help through the caravan park.  Subjectively, it is easy to understand why a young person in her situation would be reluctant to expose herself to further strangers. 

41It has not been suggested that you intentionally set out to sexually assault the complainant.  From your point of view this was an unexceptionable interaction.  She was an adult, and you were hospitable.  She had access to the Wi-Fi you provided her with, and she could have left or gone to the caravan park if she chose.  You perceived her to be friendly and apparently took that friendliness to be sexual interest in you.

42Your behaviour demonstrated a lack of understanding about the objective situation.  You were 41, at your own property, with control of the transport.  You were her employer at the time, however casual that arrangement.  The power differential between you was stark.

43Whilst the complainant was no doubt friendly and agreeable, this was not an indication that she was willing to engage in sexual activity with you.  The positive things she said about you to her boyfriend, in the LINE messages, do not lead to the conclusion that she had any sexual interest in you. Even if she was, to your mind, flirtatious, it was not reasonable for you to assume this meant she was open to sexual contact.  You were a mature adult.  You have travelled, worked, and run accommodation businesses for some years.  You should have been aware that a young woman being agreeable and friendly does not amount to an invitation for sexual activity. 

44Your offending stands in contrast to the empathetic and thoughtful person described by your friends and family.  As I mentioned earlier, you described the touching of the Complainant on the way to the toilet block, Charge 1, as “normal drunken behaviour”.[4]  Your inhibitions may have been lowered by alcohol and your judgment affected, but this does not make your belief about the Complainant’s consent reasonable.  As I have noted, the power differential between you and the complainant was significant.  You appear to have had no understanding of this, in your interactions with her, and when describing the events to the police. 

[4]Record of Interview, 261.

45An issue on the plea hearing was whether I could find, beyond reasonable doubt, that once in the caravan the complainant struggled or fought physically against you and if she asked you to stop, prior to and during the acts founding Charges 4 and 5.  Your counsel submitted that the acquittals on Charges 3, and 6 and 7 demonstrated that the jury did not fully accept the complainant’s evidence, and that to give full weight to the acquittal on Charge 3, I should conclude that there was no overt resistance by the complainant and no force used by you. 

46The prosecutor submitted that it was for me to make my own findings of fact, and that it did not follow that because there was an acquittal on one or more charges that the complainant’s evidence should all be infected with that doubt.

47I must make my own findings of fact, for the purposes of sentencing, but any finding of fact which I make must be consistent with the jury’s verdicts.  If adverse to the accused a fact must be established beyond reasonable doubt.[5]

[5]Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [14].

48The acquittals on Charges 3, 6, and 7 could have been on the basis that any one or more of the elements was not proved.  To give you the full benefit of those acquittal, I will proceed on the basis that the jury did not accept that any of the elements were made out to the requisite standard. 

49The evidence in chief founding Charge 3 was:[6]

Q:  what happened at the caravan?

A: James took me to the bed and held down my arms and ah took my clothes off.

…

[6]Transcript pages 37.5, 37.16;  See also 110.14.

Q: Can you tell the court what happens on the bed?
A: Firstly, he took my clothes off, and he held my arms and legs down and he came on top of me.

50In respect to Charge 4 the complainant described the physical touching, and said “I was fighting against it badly and I told him to stop”.[7]  She said in respect to Charge 5, that whilst you were digitally penetrating her, she told you to stop.

[7]Transcript 39.16.

51In your police interview you said that whilst the oral penetration was occurring and you were rubbing her vagina she was just laying down relaxing and enjoying it, and making noises to indicate her enjoyment.[8]  This was rejected by the complainant in cross-examination.[9] The jury’s verdicts show that they did not accept your statements that she was vocally or physically indicating participation and enjoyment.

[8]Record of Interview answer 339, 340, 341, 475.

[9]Transcript 96.19, 96.24.

52I consider that the complainant was honest in her description of events, and that she believed her evidence about verbal and physical resistance was true and correct.  I cannot exclude, however, the reasonable possibility that in practice she did not do or say anything to positively communicate her non-consent.  I consider that the most probable circumstance was that she froze or was passively resisting.

53I will sentence you on the basis that whilst you did believe that the complainant was consenting, your belief was not reasonable in the circumstances, in respect to each of the charges.  This assessment of the facts is most consistent with the acquittals on Charge 3, and my findings about the complainant’s actions.

54Ms O’Brien submitted that the offending falls towards lower end of spectrum. Whilst noting the age disparity between you she submitted that it was spontaneous offending and that it occurred relatively close in time so that it could be seen as all part of one transaction.  She noted the absence of humiliation, filming, degradation, and that the Complainant was not exposed to the risk of pregnancy or STD.  Once you realised that she was not consenting you desisted from any sexual activity, and the next morning, you prepared tea and breakfast for her. It was also submitted other factors which would increase the gravity of the offending were not present, such as offending in company, threats or gratuitous violence. 

55Ms O’Brien submitted that you both drank the wine together, and that it could not be said that you supplied her with alcohol against her will or in order to facilitate the offending, which I accept.

56The prosecutor noted that the complainant was vulnerable and there was a considerable power imbalance between you.  He reminded me that in assessing the gravity of the offending I should consider both your point of view, and the complainant’s. 

57I must also take into account the impact on the victim of the offending.  Despite the absence of a Victim Impact Statement, it was apparent from the complainant’s evidence that she was shocked, frightened and upset by the offending.  She was observed crying by the witness at the caravan park, and by Mr Suzuki. 

58Your counsel relied upon the characterisation of a digital rape in another case as lower end gravity, in support of the submission that Charge 4, at least, is a lower end range offence.  I consider it inapt to apply the characterisation of the rape in that case[10] which was in quite a different context, to this.  Each case is to be decided on its own facts. Making an assessment of the gravity of the offending before me today involves more than describing the nature of the penetration in either of the rape charges.

[10]DPP v Elfata [2019] VSCA 63

59Whilst the offending lacked a number of characteristics which would have made it more serious, the complainant was vulnerable, for the reasons I have set out earlier.  In view of the power imbalance in particular, each charge of rape was certainly not at the lowest end of the range.  In broad terms each charge upon of rape was somewhere in the lower-middle to lower end of the scale of such offending.  It should be noted that such a characterisation is made in the context of an inherently serious offence, rape, which carries a maximum penalty of 25 years’ imprisonment.

Delay

60A significant factor in mitigation is that these charges have been hanging over your head since September 2018, first in potential and then in actuality after charges were filed.  I accept that this will have been stressful for you, that you will have been concerned about the possibility of guilty verdicts, and that getting on with your life and business under this cloud has been difficult.

61I also take into account that during that time you have not been charged with any other offending. 

Extra-Curial Punishment

62As a result of the jury verdicts of guilty on these four charges your property was removed from the Air BnB platform.  This led to a significant reduction in the people seeking to stay at your property.  The publicity about your trial, which did in some cases mention the name of the property, may also lead to people choosing not to stay there.  It was also submitted that whilst you were in custody you would need to pay for someone to manage and maintain the property. 

63It was not suggested that you would have to sell the property or lose this business venture altogether.  You are not in the position of a person who can no longer work in their past career due to a criminal conviction.

64I accept that the impact of the findings of guilt on your livelihood gives rise to some degree of mitigation, but it is not a significant factor.

Prospects of rehabilitation

65I accept the submission of your counsel that your prospects of rehabilitation are excellent.  I accept that this offending was an apparent aberration, and that you are very unlikely to come before the courts again for sexual or other offending.  I note that Dr Sullivan considered that you did not need any offending related intervention, but that support in not relying on drugs or alcohol would benefit you.  Dr Sullivan considered you presented a low risk of further offending, and I agree with his assessment.

66It follows that specific deterrence has little work to do in the sentencing discretion.

Burden of Imprisonment

67I accept that you will find prison more difficult by reason of your social anxiety, and because of your concern for your parents in particular your aged father.  It will be difficult for your family to visit you, given their various locations around Australia.  Your family is loving and supportive of you and your time in custody will be made more difficult by your separation from them.

Standard Sentence

68A standard sentence is legislated in respect to the rape charges, being 10 years.  The standard sentence is “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.”[11]

[11]Sentencing Act s5A(1)(b)

69This is one factor that I must take into account, as a guidepost, but doing so does not lead to a departure from the instinctive synthesis approach to sentencing. 

Comparable Cases

70I have reviewed the cases to which I was referred,[12] but have not had regard to cases where the standard sentence did not apply.[13] 

[12]DPP v Frank [2021] VSCA 163; DPP v Schmidt [2022] VCC 1429; DPP v Norford [2023] VCC 1246; Clarke v The Queen [2022] VSCA 89; DPP v Butcher [2023] VCC 1224; Barbar v The Queen [2022] VSCA 122

[13]Section 5B(2)(b).  DPP v Elfata [2019] VSCA 63, DPP v Keller [2021] VSCA 344 were not standard sentence cases.

71I consider that the cases of DPP v Schmidt and DPP v Butcher were the most factually similar, although there were of course real differences in the circumstances of the offence, and the offender.  A number of the sentences involved pleas of guilty which were given additional weight in the context of the pandemic.  That factor in mitigation does not apply in your case.  Defence counsel noted the case of Clarke, submitting that it was a helpful comparator, although with relevant differences in the facts. Whilst of some relevance, I consider the facts in Clarke are quite dissimilar to this case.

Other Sentencing Principles

72In addition to the guideposts of the maximum penalty, and in respect to the charges of Rape the standard sentence, I am also required to have regard to legislative factors and common law principles. 

73If you are sentenced to a term of imprisonment on Charges 1 and 2, you are then sentenced as a serious sexual offender on Charges 4 and 5.  I am required to treat protection of the community as the principal purpose for which the sentence is imposed.  It was not submitted that a disproportionate sentence should be imposed.

74Totality requires that I impose individual sentences appropriate on each charge and take care in any orders for cumulation or concurrence that the total effective sentences is appropriate in view of all the circumstances.  In your case Charges 1 and 2 occurred in relatively close proximity in time, and Charges 4 and 5 at nearly the same time.  All events occurred on the same evening.  I consider that some degree of cumulation is required between each charge, although not a significant amount. 

75Whilst the serious offender provisions change the presumption from concurrency to cumulation when sentencing for an applicable offence, here Charges 4 and 5, I am still required to apply the principal of totality. 

76General deterrence, just punishment and denunciation are all relevant factors.  It must be made clear to the community that offending such as yours is not condoned, not mitigated on the basis of your intoxication, and that the sentences send the message that all people have a right to physical and sexual safety. 

Sentences

§Charge 1 – 12 months

§Charge 2 – 18 months

§Charge 4 – 5 years 6 months

§Charge 5 – 5 years 6 months

77Charge 5 is the base.  6 months of sentence on Charge 4, and 3 months of sentence on Charge 1 and 3 months of sentence on Charge 2 are to be served cumulatively on each other and upon Charge 5.

78This results in a total effective sentence of 6 years and 6 months.

79I set a non-parole period of 4 years. One of the many factors I have taken into account in imposing this non-parole period is your prospects for rehabilitation.

80I declare that you have served 24 days not including today as pre-sentence detention and I direct that that declaration be entered into the records of the court.

81No application has been made for an order under the Sex Offenders Registration Act.

82It will be entered into the records of the court that you will be sentenced as a serious sexual offender on charges 4 and 5.

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