Director of Public Prosecutions v Lockyer (a pseudonym)
[2020] VCC 323
•25 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIAN LOCKYER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
| DATES OF HEARING (TRIAL)): DATES OF HEARING (PLEA): | 19, 20, 21, 22, 23, 26, 27 & 28 August 2019 6 November 2019 & 28 January 2020 | |
DATE OF SENTENCE: | 25 March 2020 | |
CASE MAY BE CITED AS: | DPP v. Lockyer (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 323 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Rape – common assault – persistent breach of family violence intervention order - offending committed against ex-partner – serious example of this sort of offending – high degree of moral culpability – no relevant criminal history - standard sentence scheme - exercise of Court’s discretion to not make a sex offender registration order
Legislation Cited: Sentencing Act 1991, section 5B(2)(b) - Family Violence Protection Act 2008, section 125A – Sex Offenders Registration Act 2004, section 11
Cases Cited:Brown v. The Queen [2019] VSCA 286 – DPP v. Dalgliesh (a pseudonym) [2017] HCA 41 – Samuels v. The Queen [2018] VSCA 251
Sentence: Total effective sentence of 12 years and 6 months’ imprisonment, non-parole period of 10 years fixed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B.D. Nibbs of Counsel (trial, plea and sentence) | Office of Public Prosecutions Victoria) |
| For the Accused | Mr A. Lavery of Counsel (trial and plea) Mr P. Sublet, solicitor (sentence) | Victorian Aboriginal Legal Service |
HER HONOUR:
1 Julian Lockyer[1], you pleaded not guilty at trial to one charge of common assault (Charge 1) and three charges of rape contrary to section 38(1) of the Crimes Act 1958 (Charges 2, 3 and 4). The maximum penalty for the offence of common assault is 5 years’ imprisonment[2]. The maximum penalty for the offence of rape is 25 years’ imprisonment.
[1] A pseudonym
[2] Section 320 Crimes Act 1958.
2 On 28 August 2019 the jury found you guilty of Charges 1 ,2 and 3. The jury found you not guilty of Charge 4.
3 On 6 November 2019, you pleaded guilty to one charge on indictment J10467378.1B of persistent contravention of a family violence order contrary to section 125A of the Family Violence Protection Act 2008. The maximum penalty for that offence is 2 years’ imprisonment or a fine of up to 240 penalty units or both.
4 On 28 January 2020, you pleaded guilty to the summary offence of commit an indictable offence whilst on bail. The maximum penalty for that offence is 3 months’ imprisonment or 30 penalty units.
Background and circumstances of the offence
5 You were in a relationship with the victim for approximately two years before these offences occurred. You met in Darwin. The relationship was volatile and the victim moved to Melbourne. You moved to Melbourne also, and lived with her for a short time. In January 2018, the victim obtained a family violence intervention order against you.
6 Despite the IVO being in place, you reconnected with the victim by sending her a “wave” via Facebook messenger. You went to her house on 27 January 2018. This conduct and the sending of a number of text messages on
17 February 2018, after these offences were committed, is the basis of the charge of persistent contravention of the family violence order.
7 On Saturday, 10 February 2018 you and the victim agreed to meet and go dancing in the city. The victim dropped her children at a friend’s house at approximately 8 PM. She left her friend’s house to meet you at her house. You both went into the city in your car. The victim left her keys in your car. Early in the morning of 11 February 2018, you lost contact with each other. The victim did not have any money to get home so she went to another club to find someone that she knew who might be there. She met a person and went home with him to his house.
8 Later on the morning of 11 February 2018, the victim took the person’s car and drove home arriving at approximately 9 AM. She did not have her keys, so she climbed through the front window. Once inside the house, she heard footsteps coming down the stairs and saw you coming towards her. You grabbed her, ripped her clothes off, including her underwear. You accused the victim of having spent the night with someone else. The victim gave evidence that you said you wanted to check her to see if she had been with anybody else. You called her a slut and spat on her.
9 You pinned the victim down on the couch, spread her legs and kept them open by using your weight against her. You punched her to the vagina. This constitutes charge one, common assault. You penetrated her vagina with your fist, which is the basis of charge two, rape. You then penetrated her vagina again with your hand which is the basis of charge three, rape.
10 The victim was screaming in pain telling you to stop. She ran upstairs to get away from you, but you followed her. She pushed you away and told you to leave.
Investigation, arrest and interview
11 On 18 February 2018, the victim spoke to the police after her mother reported what had happened. The victim was examined by Dr Rowse, forensic medical officer, at Sunshine Hospital. Dr Rowse identified and photographed a number of bruises to the victim’s upper back, arms, legs (including inner thigh and ankle), a 10cm linear abrasion on her left hip and a graze on her genitals. Dr Rowse did not conduct an internal vaginal examination. She considered it less likely that any injuries would be observed seven days after an incident as the genital tissues heal very rapidly.
12 At about 9:52 PM on 18 February 2018 you were arrested at your home and taken into Sunshine Police Station for a recorded interview. During the interview you denied that you had had contact with the victim since the making of the intervention order other than in person on Valentine’s Day and by text and Facebook messages sent to each other. Specifically, you denied that you were at the victim’s house on the Sunday morning.
13 You denied that a series of text messages apparently related to the incident complained of were referable to that incident.
Plea
14 You pleaded not guilty to the charges of common law assault and rape. The victim was cross-examined at trial. You are not entitled to the benefit that an early plea of guilty brings for its utilitarian value or as an indication of remorse.
Effect on the victim
15 The victim made a victim impact statement in which she details the effects of the assaults on her. Her menstrual cycle has stopped. She describes frustration and anger, scrubbing her body with bleach, attempts at self-harm and an attempted suicide. It has affected her memory.
16 She is homeless and her children now live with their father interstate. When her children lived with her, she wanted to keep them home from school to keep them safe. She no longer has friends or family around her. The victim describes feeling shame and disgust at what has happened to her.
17 Evidence of the aftermath of the offences on the victim was given during the trial by witnesses who saw her the following day. She was described as being cradled over, hunched over, holding herself, walking with small steps and distressed.
Presentence detention
18 You were charged and remanded on 18 February 2018. You have 735 days of presentence detention to be reckoned as having been served under this sentence.
Personal circumstances
19 Your personal history is set out in detail in the psychological court report of Mr Simon Candlish, psychologist, dated 30 October 2019. I have had regard to the full report but refer to your background in summary form, so have necessarily been selective.
20 You are now 33 years old. You grew up in the Northern Territory, the eldest child of your parents’ relationship. You have two younger sisters. You also have four older siblings from both your mother’s and father’s previous relationships. Your parents separated when you were 16 years old. You reported to Mr Candlish that your father was always jealous and that your parents were often involved in relationship conflict. Your father often accused your mother of infidelity, would throw objects at her and verbally abuse her and your mother would then leave for some time.
21 Despite this conflict you described your mother as caring and bighearted and your father also as caring. You felt loved by both your parents. However, an accusation by your younger sister that your father sexually abused her resulted in the end of the marriage. You indicated to Mr Candlish that you were sexually abused by an older male that lived in the neighbourhood during your childhood.
22 You completed year 9 at school, but struggled academically and had behavioural issues. You worked in your Aunt’s business, in your cousin’s gym as a personal trainer, having obtained a Certificate III in Fitness, and then in several different jobs in the mining sector. The longest period of time in which you were unemployed was 18 months, approximately five years ago.
23 You started smoking marijuana after leaving school. You were introduced to methamphetamine three years into the relationship with your third partner, the mother of your children. When you were using drugs you described yourself as “the nastiest person”. You reported to Mr Candlish that you are aware of the negative impacts of substance use, losing friendships and employment.
Mr Candlish considered that your drug use has impacted significantly on your ability to function in a range of areas of life. Your insecurity and paranoia have been exacerbated by drug use, although Mr Candlish observed that you do not appear to have been suffering from this condition at the time of your offending.
24 You denied any past symptoms associated with anxiety, mania or psychosis with the exception of an incident during a period of heavy methamphetamine use. On one occasion, you tried to stage a hanging in order to upset your partner enough to influence her to stay with you. You never attempted suicide before or after this event. When asked by Mr Candlish if you had issues with anger you responded 100%. You were easily triggered in the past, would have arguments with partners and drive recklessly. After you separated from your partner of seven years, the mother of your children, you “hit the drugs, ice, marijuana and synthetic cannabis”.
25 Mr Candlish noted that you revealed low self-awareness at times and a history of limited self-reflection although you were able to identify broad issues you have struggled with including relationship insecurity and jealousy. You disclosed past issues that were indicative of characterological issues such as emotional detachment, some egocentricity and mild narcissism, some poor self-control and low self-discipline. You described yourself as being rather impatient and easily irritated. Psychometric test results indicated that you are relatively quick-tempered at times, and may be easily provoked by the actions of those around you. You are not considered to meet the threshold for a personality disorder however, your personality traits are problematic and appear entrenched according to Mr Candlish. You will require intervention to increase your ability to pursue healthy relationships and experience a healthy sense of self.
26 You have had five partners, the fifth being the victim in this matter. Your third partner, with whom you were together for seven years, is the mother of your two children. Your relationships with your partners have been characterised by feelings of jealousy and insecurity. You described your relationship with the victim as “toxic”, referring to your frequent conflict and separations.
Prior Criminal History
27 Your more recent prior offences are predominantly driving related. You have no prior matters of relevance to these offences in your history.
Maximum Penalty, Standard Sentence, Current Sentencing Practice
28 The seriousness of the offence of rape is reflected in the maximum penalty of 25 years’ imprisonment. General deterrence and denunciation are significant sentencing considerations.
29 Rape is a standard sentence offence. Section 5B of the Sentencing Act 1991 provides that a court ‘must take the standard sentence into account as one of the factors relevant to sentencing.’ It is to be treated as a ‘legislative guidepost’, as is the maximum sentence.[3] Section 38(3) of the Crimes Act 1958 provides that the standard sentence of imprisonment for the crime of rape is 10 years.
[3]Brown v The Queen [2019] VSCA 286 (Brown) at [55]
30 The effect of the new section 5B(2)(b) of the Sentencing Act is expressed in the Explanatory Memorandum as follows:
"The effect of new section 5B(2)(b) of the Sentencing Act 1991 is to prevent the courts from having regard to current sentencing practices for "old" offences (offences alleged to have been committed prior to the commencement of the standard sentence scheme). This will allow a new sentencing practice to be established for standard sentence offences that is consistent with community expectations."
31 The then Attorney-General, in the second reading speech said of the amendments:
“Sentences are expected to increase for standard sentence offences, bringing sentencing for the most serious offences in line with community expectations.”
32 In Samuels v The Queen[4], Tate JA said in respect of rape in the context of a relationship:
“… the offending was ‘extremely serious’ and as the judge acknowledged, there has been a recent shift towards sterner sentencing for rape and other sexual offences. This is a conscious decision taken by the courts to reflect the seriousness of domestic violence and sexual crimes committed against women in Victoria.”
[4] Tate JA in Samuels v The Queen [2018] VSCA 251 at [39]
33 I have had regard to current sentencing practices, but only in respect of sentences previously imposed for the offence as a standard sentence offence, in accordance with s5B(2)(b) of the Sentencing Act. I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41, that current sentencing practices are one of the many factors that must be taken into account in sentencing. I have had regard to sentences handed down in respect of the offence of rape in the County Court, which were subject to the standard sentencing regime. I emphasise that I have been cautious in having regard to these sentences. Every case is different and the court must have regard to the individual circumstances of each case. In respect of your case, that includes the particular circumstances of this offending, your personal circumstances and the relevant sentencing principles that arise for consideration and that is what I have done.
34 I was not referred to any comparable cases by either counsel. Mr Nibbs was not able to find anything of a similar nature in any jurisdiction.
Nature and Gravity of the Offences
35 Your offending is a serious example of this sort of offending. It is reprehensible. You invaded the victim’s home, a place in which she was entitled to feel safe. You laid in wait. You grabbed her, violently penetrated her vagina with your fist and your hand to ‘check’ whether she had had sex with someone else. You ignored her distress. You exercised power over her and her body, using violent physical force. You humiliated and degraded her in the sanctity of her own home. It was a violation of trust. The fact that it occurred in the context of a volatile relationship does not lessen its seriousness. It was a significant act of overt violence, albeit over a limited period of time.
36 Mr Lavery submitted that the objective gravity of your offending is below the average or mean for this sort of offending. Although the assaults were charged as sexual assaults, Mr Lavery contended that I ought consider them as “…essentially batteries in the sense of hitting someone to cause them pain rather than committing the acts for the purpose of sexual gratification.” . Mr Lavery contended that this is less serious than had the assaults been “done for sexual gratification”. There was no question here of ‘sexual interaction of the reproductive kind’, which, Mr Lavery submitted lies at the heart of the allegation of rape. “No biological exchange took place.”
37 He contended that the acts were not enduring, were not as physically intrusive as other forms of rape and that the victim would have known that your acts were likely attributable to your suspicion and jealousy concerning her absence. This would allow her to have an understanding of why the rapes occurred.
38 Mr Nibbs submitted that I ought reject the defence submissions regarding the objective gravity of the offending. To describe the offence as a battery is a mis-definition. I agree. Whilst I accept that the victim’s physical injuries were not as extensive as might be seen in some cases of rape, I note the evidence of Dr Rowse that it less likely that any injuries would be observed seven days after an incident as the genital tissues heal very rapidly. Nevertheless, focussing on the absence of physical injuries in the way contended for by Mr Lavery ignores the effect on the victim of the violation of her rights, freedom and personal dignity. The approach contended for fails to acknowledge many features of your offending which make it reprehensible.
39 Mr Lavery submitted that going to the victim’s house to wait for her to come home was ‘a fairly natural thing to do in the circumstances that existed at the time’. Mr Nibbs contended that this notion ought be rejected. Your presence in her home was in breach of an IVO. You were not entitled to be there. You let yourself into her home and lay in wait for her. The fact that there had been interaction between you despite the IVO being in place, does not preclude the protection of the victim from acts of violence. The circumstances in which you committed the offence aggravate the offence of rape in that they were acts of sexual violence to control a partner, intending to cause pain and humiliation and while you were subject to an IVO as submitted by Mr Nibbs. I am careful to avoid double punishment and as such, I do not regard the contravention of the IVO as an aggravating feature of the offences of rape in the circumstances where you are being sentenced for persistent breach of the IVO. I otherwise agree with Mr Nibbs’ submissions.
40 In relation to Charge 1 on indictment J10467378.1B, persistent contravention of Family Violence Order, the contraventions are those that were committed in the lead up to the offending on 11 February 2018 and in respect of your text messages sent to the victim on 17 February 2018, after the offences were committed, general deterrence is a significant consideration in respect of this offence. These contraventions show a disregard of a court order and are consistent with an attitude of entitlement.
41 In relation to the summary offence to which you have pleaded guilty, Mr Nibbs submitted that you were on bail in relation to charges of using a carriage service to harass and unlawful assault when these matters were committed. The underlying matters have been dealt with. In sentencing in respect of this offence, Mr Nibbs submitted that it is the nature of the offending committed whilst on bail that is of significance, not the offending for which you were on bail. Mr Nibbs contended that in sentencing you, by reference to the maximum penalty, I ought consider the breach to be towards the higher end of the spectrum because of the nature of the offending. It is a serious example of committing an indicatable offence whilst on bail.
42 Mr Lavery contended that even if it were at the higher end given the nature of the offence, the court must be mindful of double punishment. The penalty that is fixed upon ought be one that does not increase your time in prison. As you are being sentenced separately for the offence of committing an indictable offence whilst on bail, I have not taken into account this circumstance as an aggravating feature of your offending on 11 February 2018.
Culpability and degree of responsibility
43 Mr Lavery submitted that I ought consider the offending in the context of your relationship and the events that preceded it. Your relationship was characterised by conflict, dysfunction and allegations of infidelity. You were agitated, waiting for the victim to come home. The more hours that went by, the greater the anger was. The circumstances, he submitted, were what caused you to become angry, jealous and suspicious.
44 Mr Candlish recognised that you were exposed to your father’s insecure and jealous behaviours as a child and had poor role-modelling regarding conflict resolution in relationships. You appear to have developed some characterological issues related to insecurity, suspiciousness and jealousy. Your offending occurred in the context of your underlying jealousy and difficulties managing these feelings.
45 Mr Lavery submitted that these are “character tics” which are quite feasibly learned behaviours from your father.
46 Whilst your father’s behaviour might provide context in which to consider your offending, no submission was made, properly, that it excuses your offending. Your conduct warrants denunciation.
47 Your violation and degradation of the victim in her own home, driven by a sense of entitlement and control over her conduct and her body carries with it a high degree of moral culpability. The presence of this attitude is underscored in Mr Candlish’s report. He said that you “…appeared to hold some entitlement attitudes towards the victim, considering that any infidelity should be punished. [You] externalised [your] issues and projected [your] anger towards the victim, ruminating on a desire to punish her. [His] acts of sexual assaults appear a manifestation of his physical aggression and an escalation on past physical (non-sexual) altercations with the victim.”
48 Those considering degrading abuse of a partner or former partner must expect stern punishment.
Other relevant sentencing principles and current sentencing practice
49 You have no prior matters of relevance to these offences in your history. I take this into account and have moderated the weight placed on specific deterrence in considering the appropriate sentence in your case.
50 Mr Lavery submitted that your prospects of rehabilitation are good. You have a good work history. You were a machine operator in the mining industry, a well-paid and highly sought after qualification. You have the ability to go back into the workforce when released. Whilst in jail you have completed a number of courses. I have had regard to the certificates recognising your participation in a parenting program, health and exercise program and an anger management course amongst others.
51 Mr Candlish expressed the opinion that you appear to show good prospects for rehabilitation based on your presentation and history. Your responses suggested an acknowledgement of important problems and the perception of a need for help in dealing with these problems. You reported a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility. Mr Candlish noted that you appear to seek to distance yourself, psychologically from your sexual offending, which he considers is related to shame and a recognition of your behaviour as wrong. You revealed a number of protective factors including good family and friendship support, a capacity for pro-social lifestyle and indications of a capacity to cope and engage in self-control.
52 I accept that the matters referred to by Mr Candlish are positive factors in support of your prospects of rehabilitation. Mr Candlish noted, however that you told him that in the lead up to the victim returning home, your “blood was boiling to the max” and you thought that “she would have met another man and had sex with him”. When the victim arrived home, you said that you “could tell by the way she looked” that she had met another man and had sex. The combination of your issues with anger and physical aggression together with your underlying entitlement attitudes cause me to be cautious in respect of your prospects of rehabilitation. Mr Candlish noted that interventions including psychological and case management interventions may be useful in assisting you to maintain an offence-free lifestyle and pro-social existence.
53 In light of Mr Candlish’s opinion and the absence of a history of engaging in any sexual offending, tempered by your underlying attitude of entitlement and recognition of the need for intervention, I consider that your prospects of rehabilitation are reasonable.
54 Mr Lavery submitted that your family cannot visit you regularly given they are in Queensland and the Northern Territory. You are isolated from them and this makes life more difficult for you in gaol. Despite their physical isolation, they are nevertheless supportive of you. Members of your family were present supporting you during the trial. No submission was made by reference to the principles outlined in Verdins. I have, however, had regard to the impact that your distance from family will likely have on your feelings of isolation whilst serving your sentence.
55 Mr Lavery submitted that being an aboriginal man and one whom has served a term of imprisonment will make your return to the community more difficult. I accept that this is likely to be the case.
56 The sentence I impose in respect of Charge 2 is slightly more than the standard sentence for the offence of rape, which is 10 years’ imprisonment. The sentence I have impose on Charge 3 is comparable to the standard sentence. Having identified and considered the relevant factors in assessing the sentence, including my assessment of the serious nature of the offending and your culpability for it, balanced against your lack of relevant prior matters and reasonable prospects of rehabilitation, I have formed the conclusion that this is appropriate.[5] It may be that the sentence imposed exceeds a sentence that would have accorded with current sentencing practices that were in place before the introduction of the standard sentencing regime. It has been recognised that sentences for rape (and other forms of serious sexual offending) have increased somewhat in recent years. As I have said, that increase accords with and respects community expectations.
[5]Brown at [45]
57 Having analysed the circumstances of the offending, taken into account all of the relevant sentencing principles, and been guided by the maximum penalty and the standard sentence for rape, I consider the sentence to be imposed appropriate.
58 Mr Lockyer, please stand. On Charge 1, common assault by punching the victim in the vagina, I sentence you to a term of imprisonment of 2 years.
59 On Charge 2, rape by sexually penetrating the victim with your fist, I sentence you to a term of imprisonment of 11 years.
60 On Charge 3, rape by sexually penetrating the victim by introducing your hand into her vagina, I sentence you to a term of imprisonment of 10 years.
61 On Charge 1 on indictment J10467378.1B, persistent contravention of a family violence order, I sentence you to a term of imprisonment of 12 months.
62 On the summary offence of committing an indictable offence whilst on bail, I sentence you to a term of imprisonment of 2 months.
63 I direct that the sentence on Charge 2 of 11 years’ imprisonment is the base sentence.
64 I further direct that 1 year of the sentence imposed on Charge 3 be served cumulatively on the sentence on Charge 2.
65 I further direct that 6 months of the sentence on Charge 1 on indictment J10467378.1B, be served cumulatively on Charge 2 and other partial cumulations.
66 This means that I sentence you to a total effective sentence of 12 years and 6 months’ imprisonment on both indictments.
67 You are to serve a period of 10 years before being eligible for parole.
68 I declare that you have 735 days pre-sentence detention to be reckoned as having been served under this sentence. Mr Lockyer, you may be seated.
Sex Offenders Registration Act 2004 (SORA)
69 The prosecution has applied for a sex offender registration order pursuant to s 11 of the SORA. The court has a discretion as to whether an order is justified in the circumstances of the case.
70 The prosecution filed written submissions in support of the making of an order on 19 November 2019. Written submissions on your behalf were filed on 28 January 2020. Further written submissions by the Crown were filed on
5 February 2020.
71 I have had regard to all written and oral submissions made.
72 The court may only make a sex offender registration order under s11 if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community.
73 I am not satisfied beyond reasonable doubt that Mr Lockyer poses a risk to sexual safety, that is, a real risk to the sexual safety of the victim or of the community upon his release into the community based on what is presently known.
Mr Lockyer reported a history of conflict in his relationships to Mr Candlish. He has had relationships with 5 partners of varying degrees of volatility. He has, however, no prior convictions for sexual offences.
74 Mr Candlish’s empirically guided clinical judgment is as follows : “He is considered to fall into the low risk category for sexual recidivism of the nature outlined in the risk scenario section, in the absence of interventions designed to increase his risk manageability.”
75 In relation to the risk of sexual offending, Mr Candlish considered that Mr Lockyer falls in the “Low risk category” in the absence of any further interventions designed to increase his risk manageability.
76 There is also the deterrent effect of the sentence imposed. Application for sex offender registration under the SORA is refused. Mr Nibbs, I understand there is a disposal order?
77 MR NIBBS: Yes, Your Honour.
78 HER HONOUR: Yes. Mr Sublet, anything to say in respect of the disposal order.
79 MR SUBLET: No, Your Honour.
80 HER HONOUR: I make that order. Is there a need to a formally withdraw other related summary offences?
81 MR NIBBS: No, Your Honour.
82 HER HONOUR: In case it is needed that is done. Thank you. Could you adjourn please? Mr Lockyer can be taken.
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