Director of Public Prosecutions v Lockington

[2016] VCC 1082

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00683

DIRECTOR OF PUBLIC PROSECUTIONS

v

NORMAN LOCKINGTON

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 July 2016
CASE MAY BE CITED AS:	DPP v Lockington
MEDIUM NEUTRAL CITATION:	[2016] VCC 1082

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Zebrowski
For the Accused	Mr J. McLaughlin

HER HONOUR:

1Norman Lockington, you have pleaded guilty to one charge of rape.  The maximum penalty of for that offence is 25 years imprisonment.  The prosecutor made application for the making of a disposal order in respect of certain items.  The making of that order was consented to. 

2The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances are as follows.  The offending occurred in the early hours of the morning on
Wednesday 27 January 2016.  You were then 29 years old and the victim was 17 years old.  You and the victim were members of a large extended family.  The victim lived with her older sister, not far from where you lived with other family members, your wife and young daughter. The victim regarded you, as a brother. 

3On the evening of Tuesday 26 January 2016, the victim wanted to go to stay the night at a friend's house.  She asked her sister who gave permission, but said no one was available to drive her.  The victim said she would ask you and her sister agreed to this as you were part of the family and trusted.   You agreed to drive the victim, but on the way the victim could not contact her friend and it was agreed that you would both go to your house.  The victim wanted to see if your sisters were awake, but by the time you arrived home, your sisters were asleep.  Your wife and daughter were away on holiday.

4You and the victim went to your bedroom.  In the bedroom there are two beds pushed together.  From the photographs tendered as Exhibit C, both beds were larger than single beds and took up most of the floor space of the bedroom.  The victim borrowed a pair of shorts from you as her jeans were tight and not comfortable to lie in.  The victim lay on one bed and you on the other.  You were using your computer and phone and the victim was using her phone.  You both fell asleep.

5At about 2 am, you woke up and went to the toilet.  You came back and lay down next to the sleeping victim and began kissing her on the mouth.  You then pulled down her shorts and underwear, leaving them on one leg.  You got on top of the victim and penetrated her vagina with your penis.  You began having intercourse without wearing a condom.  You did not ejaculate.   After about a minute, the victim woke up.  She pushed you off, she began to cry and picked up her things and left the house.  You started apologising and went out in your car to try and find her. 

6The victim went the house of another family member, no one was home, so she slept for a while on a trampoline in the backyard.  The family arrived home from holiday at about 4 am.  The victim was very distressed and in tears.  Ultimately, the victim's aunt went with her the next day to explain to the victim's older sister what had happened.  The victim's older sister drove to your house and confronted you.  You said you did not know what you were doing and that you were sorry.  You asked for forgiveness.  She asked if it were true you had raped the victim while she slept and you agreed you had and apologised.  The victim's older sister said she would tell her husband and take the victim to the police.

7Shortly after this confrontation, at about 12.30 pm, on the same day,
27 January 2016, you went to the Cranbourne Police Station and handed yourself in saying you had raped someone.  The police spoke to the victim and interviewed you.  You made full admissions to the offending.  The victim completed a VARE statement on 1 February 2016.  There is no victim impact statement.  I was advised that the victim and her family were given the opportunity to make a victim impact statement, but declined.

8The committal proceeded on 22 April 2016 by way of straight hand-up brief, with you indicating a plea of guilty. 

9In sentencing you, I have taken into account your personal circumstances.  You were born in the Cook Islands into a large immediate and extended family.  Your parents came to Australia in 1987, shortly after you were born.  You were raised by your grandparents.  You completed school to the equivalent of Year 10 in Australia.  You worked in a warehouse.  You came to Australia with your grandparents in 2003.  You worked in various manual labour jobs.  In 2006, you went back to the Cook Islands and met the lady who is now your wife.  In 2009, you competed in the Cook Island volleyball team in New Zealand.  You stayed in New Zealand for three years working as a steel fixer.

10In 2012, you returned to Australia.  You went to Brisbane as a steel fixer, then came to live with your parents in Melbourne with your partner and young daughter.  You were unemployed between November 2015 and April 2016.  You have been working with a galvanising company since then as a casual labourer.  You have no prior criminal history.  You have no drug or alcohol or mental health issues. 

11Five references were tendered on your behalf as Exhibit 3.  One reference from your employer confirms your employment and comments very favourably as to your work performance and attitude at work.  Other references speak very positively about your character and active membership of the Cook Island Christian Church.  You are a deacon and have been a member of the Cook Island Christian Church, Youth Counsellor Victoria for two years.  The reference from the Secretary of that organisation speaks very positively of your character and contribution.  The writer also says that you have been more withdrawn and seem remorseful.  It appears that you have suffered some disgrace in the eyes of your community and family.  I accept that you are well regarded in your church community as being a good role model, husband and father.

12In sentencing submissions, your counsel submitted that the appropriate sentence would be a community correction order.  Your counsel referred to a number of factors and submitted that this offending was at the lower end of the spectrum of rape offences.  In saying that, your counsel did accept certain aggravating features existed.

13In mitigation, your counsel relied on a number of matters, including your absence of prior criminal history and that this offending was out of character for you.  Your counsel relied on your plea of guilty and said you were ashamed and remorseful.  He relied on your previous positive contribution as a church member, community member, husband and father.  Your counsel said that you were naive and "unfamiliar with negative inferences prevalent in a custodial setting". 

14Your counsel said that your separation from your wife and daughter and parents would cause extra hardship to you if you were incarcerated.  Your counsel also submitted that the prospect of deportation if you were sentenced to a term of imprisonment of more than 12 months would weigh very heavily on you.  Your counsel further submitted that there was no need for specific deterrence in your case given matters such as you being remorseful and this offending being out of character.

15The prosecutor submitted that in view of various factors, this offending was not at the lower end of the spectrum for offences of rape.  The prosecutor submitted that a sentence not involving imprisonment would be outside the range for this offending. 

16Norman Lockington, any rape is a serious crime.  The maximum penalty of 25 years imprisonment reflects the seriousness with which Parliament, on behalf of the community, takes this form of offending.  Rape involves the physical violation of another person.  The victim in this case was still a child.  She was not just a child, but a child within your family group.  She and her family trusted you as a brother.  What you did constitutes a gross breach of that trust. 

17In submissions, your counsel referred to the unusual circumstances of her being in your bedroom which appear to have led you to believe she was interested in you.  This submission appears to be a reflection of certain answers that you gave in the record of interview.  I wish to make it absolutely clear that any such mistaken impression on your part, does not in any way reduce the objective gravity or seriousness of your offending.  The victim did nothing wrong and did nothing to give you such an impression.  You are an adult and are 12 years older than her.  The victim ought to have been able to stay the night in your room when she found out at a relatively late time of night she could not contact her friend.  In effect, she accepted shelter from a person she trusted as a brother.  The room in which she was going to stay was comfortable and roomy with the beds arranged as they were.  She was entitled to believe that she would be safe and she should have been safe.  She was not safe.  You succumbed to the temptation to indulge your urges for sexual gratification.  You knew she was not consenting. 

18You took advantage of her being asleep and were prepared to have sex with her without using a condom.  Ultimately, you did not ejaculate, but you were prepared to have sexual intercourse without a condom, potentially exposing the victim to some risk of pregnancy or disease.  As soon as she realised what was happening, she was distressed and pushed you off.  She was then clearly very distressed.  It is not possible to say what if any ongoing harm she will suffer.  But offences of this kind are regarded by the courts as likely to give rise to ongoing problems for victims.  Such offences also harm the community generally, in leading to fear and feelings of mistrust in others.

19I accept there was an absence of additional physical force or coercion.  The penetration was relatively brief.  I accepted the offending was unplanned and was spontaneous.  You immediately desisted and apologised.  Taking those matters into account, the circumstances I have outlined means that the objective gravity of your offending is not at the lower end of the spectrum of rape offences.  There are mitigating factors due to matters personal to you, but I consider the objective gravity of your offending to be towards the midrange.

20As I have said, there are a number of factors which operate in mitigation of sentence.  You are entitled to a significant discount for your plea of guilty.  That plea of guilty has saved the trauma and expense of a trial.  I accept that your plea of guilty is a demonstration of your immediate ongoing and sincere remorse.  You cooperated with the police in addition to pleading guilty.  You immediately went to the police.  You were aware of what your sister in law had said, but you had no hesitation in going to the police and making full and frank admissions.  You have continued to cooperate with the process.

21You are of previous good character and have made a positive contribution to society generally, and to your family in particular.  You have no criminal history.  Your prospects of rehabilitation are very good.  Your background, remorse, family and community support and lack of any drug, alcohol or mental health issues suggest that you will have no difficulty working towards rehabilitation from this offending.

22I accept that imprisonment will be more difficult for you because of your separation from your wife, daughter and parents, although no matters of specific concern were raised in this regard. 

23This will be your first term of imprisonment.  That has to be taken into account in sentencing you.  I accept that you are relatively a dependent person for your age.  You have not been exposed to the criminal culture.  You will find prison confronting and difficult as do many, especially those who like you, come from hardworking and law abiding backgrounds.

24The prospect of deportation will also make imprisonment more difficult for you.  I accept the submission that there will be considerable and uncertainty about your situation.  That uncertainty will lead to more anxiety for you because your parents and family members live in Australia.  You have limited work prospects in the Cook Islands and will also be concerned about your daughter's future prospects.

25Even with the mitigating factors I have outlined, the objective gravity of the offending is such that a community correction order, whether alone or in combination with a sentence of imprisonment, would not adequately meet the sentencing objectives of denunciation, just punishment and general deterrence.

26Despite your very good prospects of rehabilitation, specific deterrence must be given, albeit reduced weight in sentencing you.  This is because you were prepared to succumb to temptation on one occasion, and you must understand that there will be severe consequences if you do so again. 

27I have taken the matters in mitigation into account in setting a lower non-parole period than I otherwise would have. 

28This offending is classed as a Class 1 offence for the purposes of the Sex Offender Registration Act.  You will be required to comply with reporting provisions of that legislation for 15 years.  Shortly, you will be given some documentation in that regard.  You will be asked to sign a piece of paper saying you have received that documentation.  Your counsel will be able to explain that to you, what the implications of that are for you.  I have made the order for the disposal of certain items that was sought. 

29Could you please stand Mr Lockington.  On one charge of rape you are convicted and sentenced to a term of imprisonment of four years.  I fix two years and three months as the period you are required to serve before being eligible for parole.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years and six months, with a non-parole period of four years. 

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