Director of Public Prosecutions v Macarthur

[2018] VCC 851

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01497

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE MACARTHUR

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2018
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v Macarthur
MEDIUM NEUTRAL CITATION:	[2018] VCC 851

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – common assault, theft, rape, attempted rape

– immediate term of imprisonment imposed

Cases Cited:Guden v R (2010) 28 VR 288 and Konamala v R [2016] VSCA 48 at paragraphs [35] to [36]; Schneider v R [2016] VSCA 76; Da Costa Junior v R [2016] VSCA 49; Bugmy v The Queen (2013) 302 ALR 192; R H McL v The Queen (2000) CLR 452

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions For the Accused	Ms A Hassan Mr S Ginsbourg	John Cain, Solicitor for the Director of Public Prosecutions Simon English

HER HONOUR:

1Jamie Macarthur, you have pleaded guilty to 18 charges of common assault, one charge of theft, one change of rape, and two charges of attempted rape.

2The charges are serious, and that is reflected in the maximum penalties that are prescribed by law, and they are: for rape, 25 years' imprisonment, attempted rape, 20 years' imprisonment, and common assault and theft, five years' imprisonment, respectively.

3In addition, you admitted your prior criminal history.  It is limited, but nonetheless relevant.  There are three court appearances that span the period from 16 January 2003 until 21 May 2015.  Your past offending related to dishonesty offences, unlawful assault, being drunk in a public place, and criminal damage charges. 

4You have been dealt with by the courts on two occasions through the imposition of adjourned undertakings without conviction, and on the last occasion, you were convicted and fined and a drunk charge was dismissed. 

5It is of some significance that you have never been convicted of any sexual offences in the past.

6I shall now proceed to sentence you on the basis of the Crown opening that was read at the plea hearing and is marked as an exhibit.  No issue was taken with the opening as it was read by the prosecutor. I will now turn to the circumstances of the Charges 1 to 14.

7On 15 March 2017, between 4.30 pm and 4.51 pm, you were observed by a number of people behaving erratically in the vicinity of the Melbourne Central shopping complex.  The charged offending concerns you behaving in a threatening and aggressive manner, assaulting members of the public - in the main, young women.  A number of calls were made to emergency services to report your erratic behaviour, following which police responded.

8You were found lying on the footpath in front of the Golden Orchids restaurant in Bourke Street at about 5.20 pm, in an obvious intoxicated state.  You were arrested for being drunk in a public place.  You were taken to the Melbourne West police station, where you were lodged in the cells until you were sober.  You were bailed on your own undertaking and released from police custody at about 9.37 pm.

9CCTV footage was exhibited and has been viewed, that shows your behaviour in the Melbourne CBD on 15 March 2017.  At 4.34 pm, you are seen pushing an unknown male in the back, causing him to lurch forward. (Charge 1, common assault).  You then approached a female who was standing with her back against a wall.  You kicked her in the leg, between the ankle and knee, before running off in the direction of La Trobe Street. (Charge 2, common assault).

10You then approached another female on the other side of the street and kicked her in the leg. (Charge 3, common assault).  You then punched a male, who was walking along Swanston Street, in the upper arm. (Charge 4, common assault).  You then walked to the tram stop on Swanston Street, where you pushed a male in the chest. (Charge 5, common assault).

11You then made your way from Swanston Street to Knox Lane, which leads into the Melbourne Central shopping complex.  Here, you were seen to be verbally abusing people around you, and in Knox Lane, you kicked a woman from behind in the back of her leg. (Charge 6, common assault).  You continued walking down Knox Lane, and whilst wearing a backpack, began to use your backpack to assault other people walking in the crowded laneway.  You moved your backpack to the right and struck a female to the head with it. (Charge 7, common assault).

12You then elbowed a female in the jaw. (Charge 8, common assault).  You elbowed another female in the shoulder. (Charge 9, common assault).  You kicked a male in the leg from behind.  (Charge 10, common assault).

13You then entered the shopping complex, and descended a flight of stairs, and made your way to the pressed juices store.  You removed a bottle of fruit juice from the fridge before walking away without making any attempt to pay for the juice. (Charge 11, theft).

14Once you left, you continued walking through the shopping centre before arriving in Little Lonsdale Street.  There, you crossed the street and entered the adjacent section of the complex, and walked into a food outlet and stood beside a female who was waiting to order.  You were seen speaking to the female, and then she moved away from you.  You approached another female, who also moved away.  You then again attempted to speak with the first female, at which time you lifted your shirt and rubbed your nipples, before putting your fingers in your mouth and licking them.  You touched the female on bare arms with your fingers. (Charge 12, common assault).

15After leaving the food outlet, you made your way onto Lonsdale Street and Swanston Street. In Bourke Street, you were seen approaching people on the footpath, moving towards them in a way that they had to deviate to avoid you.

16At 4.48 pm on Swanston Street, you approached a woman who ran away from you and boarded a tram.  You chased the woman to the tram stop, but stopped short of boarding the tram yourself.

17At 4.49 pm, in Swanston Street near its intersection with Bourke Street, you approached a couple walking together.  You stopped in front of them and raised your left fist in the air in front of the male.  The female moved to her left in order to avoid you, and began to walk past you, and as you did so, you pushed her in the back.  (Charge 13, common assault).

18At 4.50 pm, you approached a woman in Bourke Street and blocked her path, causing her to change direction.  You then began to follow her, and only desisted when another male intervened.  You did this to another nearby woman.  She continued passing you without stopping.  You then approached another woman, who was sitting alone, and briefly spoke with her before moving away.

19You then made your way to the intersection of Bourke Street with Exhibition Street, where you were seen kicking a man, who had come out of the Australia Post building, from behind in the back of his leg. (Charge 14, common assault).

20I will turn now to the circumstances of Charge 15 to 20. 

21You were discharged from police custody at 9.37 pm on 15 March 2017, and in the early hours of 16 March, at about 4.49 am, you encountered the victim - whose name I will not read aloud to protect her - who was waiting at a tram stop in Bourke Street.

22She was visiting Melbourne from interstate for Melbourne Fashion Week.  She had been out socialising with friends, and was alone, and attempting to make her way back to Carlton, where she was staying.  She was unfamiliar with Melbourne and did not have a map.  All she could think of was that if she caught a tram in the direction of Melbourne University, that would eventually take her in the right direction.

23You began to speak with her at the tram stop.  You then both spent some time walking in the city together before you followed her onto a tram that she eventually boarded. 

24The victim was in fear of you, and tried to defuse the situation by placating you.  One witness observed you before you both entered the tram.  He saw you putting your hands all over her body, groping her, including grabbing her on the buttocks.

25When she boarded the tram, you followed her and continued to grab at her and tried to pull her towards you to kiss her.  She was very scared, and thought the best thing to do was to placate you in order not to make you angry.  At one point, she kissed you back.  She did not know how to get out of the situation that she had found herself in, and tried making eye contact with one other passenger to help her, but the passenger just looked back at her.  Other passengers also watched you together, but no-one sought to intervene.

26When the tram stopped opposite St Vincent's Hospital, Fitzroy, the victim took the opportunity to leave the tram and made her way to the hospital, hoping to find safety inside.  You followed her from the tram stop and confronted her in the glass entry doors to the hospital, where she was unable to gain access.  You said to her that she could not go into the hospital and that you would not let her.  She told you that she was there to visit a friend.  You then became angry and said, and I quote, "We are going to fuck tonight."

27You grabbed her around the shoulders and neck with your arms and forcibly dragged her away from the hospital doors.  You threw her onto the ground outside, and as a consequence, fell yourself.  You got off the ground and then walked back to the glass entrance doors to the hospital.  The victim located a bell on the side of the doorway and pressed it, hoping to gain access, without success.

28You followed her and grabbed her face with your right hand, and kissed her on the lips, and began grinding your pelvic area into her in a sexual manner.  It was at this point you licked your fingers and penetrated her vagina with your fingers.  (Charge 15, rape).

29She was trapped in the corner by the entry doors.  You continued to fondle and kiss her.  You put her in a headlock and dragged her around by the neck to the opposite side of the alcove, where you forced her onto her back and onto the hand railing.  (Charge 16, common assault).

30You then pulled off her dress, tore off her underwear, and forced her to lean back over the hand railing, causing her pelvis to tilt up, and in this position, you again attempted to insert your fingers into her vagina. (Charge 17, attempted rape).

31Unable to penetrate her vagina, you then turned her around and forced her to bend over at the hand railing, but this time, on her stomach, so that her back was towards you.  You again attempted to penetrate her vagina with your fingers, this time from behind. (Charge 18, attempted rape).

32At this time, you had the victim in a headlock and proceeded to drag her around, attempting to pull her away from the doors. (Charge 19, common assault).

33The episode was witnessed by hospital security, who, for some inexplicable reason, did not intervene to assist the victim.  You then dragged her out of the entrance alcove and onto the street, where she fell to the ground.  There, she was observed by a hospital cleaner who was walking to work.  The cleaner saw you holding the victim by her hair.  When she was on the ground, you began to kick her in the legs. (Charge 20, common assault).

34At this point, the victim was able to break away from you, and again ran to the hospital doors.  At this stage, she was let in. Hospital security staff tried to speak with her, but she was unresponsive and gave the appearance of being in shock.

35You then entered the hospital and asked her to leave with you, and she asked you to please leave.  At some time thereafter, you went to leave the hospital and found that the doors were not open. A security guard, Nathan Thornes, then approached you to assist, but you became aggressive and attempted to kick him. (Charge 21, common assault).  You then approached the victim again and handed her your phone, which she promptly returned.  She began to walk away from you, but you grabbed her by the arms, spinning her around.  (Charge 22, common assault).

36She then broke away and walked across the foyer.  You finally left the hospital, but not before kicking and punching the glass doors, and headed out towards Victoria Parade.

37Police were called to the hospital and they obtained CCTV footage that captured your offending.  That has been viewed.  You were immediately recognised by police members from the CCTV footage because of their earlier involvement with you on the day previously in the Melbourne Central Business District.

38On 16 March 2017, you were arrested, and during the record of interview, you admitted meeting the victim in the city when you were "a little bit drunk".  You made admissions to the attempted rapes and other offences committed.  You said to police that you knew that you were being overly aggressive, but you could not believe that you had "scored" this girl, so you "just went for it".  You initially denied digitally penetrating the victim's vagina, but when you were told that this is what she alleged, you said that she was probably right and that she would not be lying.

39The victim was examined by a forensic medical officer on two occasions; on 16 March 2017 and 23 March 2017.  At the first examination, the doctor observed a bruise on the left upper arm, and small abrasions to her knees, and a scratch to the left inner labia region.  On 23 March 2017, the doctor observed that bruising had developed on her lower back, right buttock, hip and thigh.

40A victim impact statement that was declared was read in which the victim sets out the impact of your offending.  She is very angry and upset.  She has suffered the symptoms of post-traumatic stress disorder.  She feels guilt and shame that she even interacted with you; guilt because she responded to you, and shame because she did not fight back harder or simply run away.

41Mr Macarthur, your offending is very serious, involving multiple innocent victims whom you assaulted in a public place in the CBD without any reason.  Those victims were just going about their business and were entitled to feel safe and secure in such a busy public thoroughfare.

42The crimes concerning the victim of the rape and attempted rapes are serious in that they concern attacks by you on a stranger in a public place, and in circumstances which would have been terrifying for the victim.  You now accept that your behaviour would have emotionally scarred the victim.

43Mr Ginsbourg, your counsel, advised the court that you ingested a large quantity of alcohol and possibly other drugs in the lead-up to the offending, and also, that you are a person whom he described as being socially inept.  He submitted that a combination of those features most likely fuelled the offending.

44Furthermore, he submitted, in respect to the victim, that you misinterpreted her attitude to your advances up to the point where you followed her to the St Vincent's Hospital foyer.  Thereafter, disinhibited by your intoxication, you submitted to your sexual urges and sexually forced yourself upon her.

45Whilst offering some explanation for your bizarre and senseless behaviour on 15 March, and your cruel, demeaning and humiliating behaviour the following morning, that explanation in no way excuses your behaviour. 

46I do not accept the submission that you mistakenly believed that your advances were tolerated by the victim. Your behaviour after leaving the tram, following the victim, was brazen, predatory and unwanted. 

47In all the circumstances, there is a real need to emphasis general and specific deterrence and to provide for the protection of the community from you in the future.

48I am satisfied that the moral culpability associated with your offending, involving the victim of the rape and attempted rapes, is high.  You were persistent in your pursuit of the victim, and at the hospital foyer, you were aggressive in your actions and you persisted in exploiting her for your own sexual gratification without any concern for her.

49In sentencing you, significant weight must be given to denouncing your behaviour.  There is a need to send a message to the community that offending of this type will never be tolerated and is deserving of stern punishment.

50In making this statement, I have given due consideration to the weight that should be accorded to your personal circumstances, and the mitigating features that have been highlighted by Mr Ginsbourg.  I note that you were fully
co-operative with the police, and made admissions against interest when interviewed. 

51Your plea of guilty was entered at an early stage and has real utility. By your plea, you spared the victims, especially the victim of the rape and attempted rapes, the ordeal of being called as witnesses at committal and trial.  You have saved the State the cost and expense of a trial, and you have facilitated justice, and your sentence will be discounted accordingly.

52I accept that you have demonstrated genuine remorse for your offending, and that is reflected in your admissions together with the written letter of apology, and the plea of guilty.  Through your plea, you now acknowledge that what you did was wrong. I note that it is accepted, however, that you do have a flawed insight into your offending.

53I have taken into account that you come from a difficult background.  You were born in Auckland, New Zealand.  You have one older brother and four half-siblings from your mother's earlier relationship.  Your parents separated when you were eight or nine, and thereafter, you spent different periods of time in the care of both parents.

54Your childhood was difficult.  Your mother had alcohol and mental health problems, and your father was a strict disciplinarian.  I also noted that you were sexually abused as a young child by an older male who lived nearby.  You finished school when you were 14 and did not complete Year 9.  You later completed a course in labouring and horticulture, and you have had some employment of the years in a series of low-skill jobs.

55Dr Simon Vincenzi, the clinical psychologist who provided a report to the court, confirmed that you meet the diagnosis for major depressive disorder, mild and in partial remission, alcohol use disorder in sustained remission in a controlled environment. He noted that around the time of the offending, that your depression led to feelings of fear about your future and safety, and you were angry, and that anger was directed towards the world generally, and the people you encountered.

56He states that the rape was not an act of aggression; rather, it was motivated by desire.  He noted your difficult family background, which I will not repeat. He also noted that you were sexually abused around the same time you were entering puberty. He concluded the scientific literature indicates that boys who are abused around this time are at a greater risk of engaging in future sexual offending than children of either gender who are abused earlier or not abused, and consequently, your early abuse may have been a predisposing factor for your sexual offending.[1]

[1] Ogloff J, Cutajar, M, Mann E and Mullen P (2012). Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study. Trends and Issues in Crime and Criminal Justice, 440, 1-6.

57He notes that your depression appears to have responded well to the structured environment of prison, and you reported in the long term your mood had improved significantly.  He concluded, consequently, it is unlikely that your depression would mean that a term of imprisonment would weigh more heavily on you than it would on a person of normal health.

58He considers that you fall within the moderate risk category for future sexual offending.  He recommends that you undertake the Specialised Offender Assessment Treatment Services' Better Lives Program to address your dysfunctional coping strategies, impulsivity, poor insight into the factors that led to this offending, and lifestyle factors.  He also recommended drug and alcohol counselling.

59I note that you migrated to Australia in 1991 when you were aged about 23.  Since coming to Australia, you have had only limited employment, working as a pool lifeguard and a courier spasmodically. 

60In around 1995, you were grief-stricken by the loss of a brother-in-law to suicide and started using heroin, and you have not been employed since then.

61You have lived in a public housing unit in Kensington since 2002, and you have been the recipient of a disability support pension for over a decade.  You participated in a Salvation Army Bridge Program. For the past five years, you had been prescribed buprenorphine and methadone to manage your addiction through the general practitioner, Dr Peter Wright.

62You have an older biological brother who lives in Melbourne and he is your main source of support. He keeps in regular contact with you, visiting and corresponding with you in gaol.  He did not attend court, but is said to remain supportive of you.  Your father is in his 80s and resides in New Zealand.  Your mother died some 20 years ago.  You have not spoken with your father for the past four years, and apart from your relationship with your older brother, you have neglected your family and social contacts.

63Character evidence was provided at the plea hearing.  Anne Haynes, a research assistant with Turning Point Eastern Health, gave evidence.  She has known you for a couple of decades.  She spoke of your social relationship only.

64She described you as being a "tender soul" and acknowledged that you do have real self-esteem issues.  She states in the past you have never been aggressive towards her or shown hostility towards other women in her presence. Your offending upset her greatly.  She was unable to cast any light on your behaviour.  She said, at a recent gaol visit, you were having trouble believing how badly you had behaved and that your attitude towards the offending is one of shame, distress and concern for the victim.

65James McGuinness, one of your brother's friends, has known you since 1994. In his letter, he states whilst he has not had continual contact with you, he has seen you about in his local community of Kensington since about 2004.  His observations were that you appeared to be very unwell and your condition had deteriorated.  He considered that you committed a shocking crime, and he made a suggestion about the likelihood of you suffering from cognitive impairment at that time.

66You have been held in custody on remand at the Metropolitan Remand Centre and Hopkins Correctional Centre.  You are held in a protection unit where you are subject to some restrictions, but that was not relied upon by your counsel.

67One consequence of your incarceration is that you have now lost your public housing unit. 

68You do have permanent resident status in Australia, but not Australian citizenship.  In the event that you are sentenced to a term of at least one years' imprisonment, your visa will be subject to mandatory cancellation, and, unless the relevant minister is persuaded to revoke that cancellation, you will be deported at the end of your sentence.[2]

[2] The Migration Act 1958 (Cth), s501(3A), s501(6)(a), s501(7(c) and s501CA.

69Whilst it is accepted that the court cannot speculate about whether the Minister will revoke the cancellation order, the real prospect of deportation is a relevant sentencing consideration. I have had regard to that on the basis of the additional anxiety that you will suffer whilst undergoing sentence due to the anxiety associated with the risk of deportation.[3]

[3] Guden v R (2010) 28 VR 288 and Konamala v R [2016] VSCA 48 at paragraphs [35] to [36]; Schneider v R [2016] VSCA 76; Da Costa Junior v R [2016] VSCA 49.

70You have now lived more than half your life in Australia, and your main personal support is your brother.  By contrast, you have effectively had no real contact with your New Zealand family.  You have been disengaged from them for almost three decades.  You do not know what level of support your family could provide you with in the event that you are deported to New Zealand.

71You do have a history of some mental health issues in the past.  However, your counsel did not rely on the application of Verdins principles in respect to the offending.  I have had regard to the information that has been provided to me concerning your past mental health issues, and I have taken that into account in a general sense.

72In formulating the appropriate sentence, I have had regard to the circumstances of your offending.  I consider that the offending is very concerning, especially the offending concerning the victim of the rape and attempted rapes.  I consider that they are very serious examples of those charges.  The fact that the offending occurred whilst you were on bail for the earlier offending is another aggravating feature.  Your intoxication, whilst explaining in part your disinhibited offending behaviour, is in no way mitigatory of the offending behaviour on both 15 and 16 March.

73A pre-sentence clinical assessment report has been completed by Dr Alana Harridge, who is a senior clinician at the Specialised Offender Assessment and Treatment Service, Corrections Victoria.  She assesses you as being of moderate-high risk of perpetuating sexual violence in the future.  She also recommends that you participate in the Better Lives Program, and have targeted case management intervention in consultation with the Specialised Offender Assessment and Treatment Service.

74She noted that you presented with some understanding of the factors that contributed to your sexual offending behaviour.  However, you did not demonstrate insight into the cognitions and emotions associated with your decision to sexually offend.  She says that you would benefit from further exploration of your sexual offending behaviour, and offence pathway, in order to develop more insight and subsequently, areas in which you can intervene in future to reduce the risk of re-offending and improve your risk management.

75She also made further recommendations in relation to alcohol and drug treatment and counselling, in respect to coping with grief, and recommended that your mental health status be monitored on an ongoing basis. 

76I agree with her recommendations, and it will be important for the future that proper steps be put in place to manage your transition to ensure proper regard is had to your mental health status and also in respect to the need for treatment for alcohol and drug issues, and also the specialist offender treatment program.

77It is accepted, on conviction and sentence with regard to Charges 15 and 17, that the provisions under s.6B(2)(a) of the SentencingAct 1991 applies. Therefore, you fall to be sentenced as a serious sexual offender with respect to Charge 18. As a consequence of the serious sexual offender provisions, the protection of the community is the principle purpose for which the sentence is to be imposed,[4] and there is a presumption of cumulacy unless otherwise directed.[5]

[4]Sentencing Act 1991 (Vic) s 6D.

[5] Ibid s 6E.

78The provisions also mean that in sentencing you, the court, in order to achieve the purpose of protection of the community as a principle purpose of sentence, may impose a longer sentence than that which is proportionate to the gravity of the offences, considered in light of their objective circumstances.  The Crown, in this case, is not seeking a disproportionate sentence.

79I have had regard to the majority decision of Bugmy v The Queen.[6]  The effects of your background of significant deprivation does not diminish over time or with repeated offending, and has been given full weight in formulating the sentence I am about to impose.

[6] (2013) 302 ALR 192.

80I have had regard to the principles of totality, limited somewhat because of regard that needs to be given to the statutory presumption of cumulation for serious sexual offences.[7]

[7] R H McL v The Queen (2000) CLR 452. That case deals with the predecessor to s6E of the Sentencing Act but the same reasoning applies. See paragraph [76] per McHugh, Gummow and Hayne, JJ 476-7.

81Ultimately, in formulating the appropriate sentence, I must impose just punishment.  Your physical attacks and senseless attacks on strangers in the Melbourne Central Business District and your conduct, involving the victim of the rape and attempted rapes, was brazen and is deserving of condign punishment.

82I will now impose the formal court orders, but before I do so, I make clear that I have had regard to the High Court decision of Dalgliesh,[8] and I have had regard to current sentencing practices insofar as digital rape is concerned. In particular, I have had regard to the Court of Appeal decision of Shrestha v The Queen.[9] I accept that the Court of Appeal has acknowledged in that decision that it is clear that the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence and the moral culpability of the offender.

[8]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.

[9] [2017] VSCA 364.

83There are factors that distinguish your case from Shrestha, insofar as you entered a plea of guilty at an early time whereas in that case, the sentence was imposed following sentence. There are some features of your offending which are similar but some features are dissimilar in respect to Mr Shrestha.  But nonetheless, I have had regard to the principles that are expressed in that case.

84Please stand.  The formal court orders will be as follows.

85In relation to Charges 1 to 10 and Charges 12 to 14, the common assault charges, and the Charge 11 theft charge, they arise out of the incident in the Melbourne Central Business District on 15 March 2017.  Because they are all founded on the same facts and form part of a series of offending of the same or similar character. You are convicted and sentenced to an aggregate term of 12 months' imprisonment in respect to those charges.

86In respect to Charge 15, rape, you are convicted and sentenced to five years' imprisonment.  That is the base sentence, Charge 15.

87In relation to Charge 16, common assault, convicted and sentenced to three months' imprisonment.

88In relation to Charges 17 and 18, the attempted rape charges, you are convicted and sentenced to four years and six months' imprisonment, in respect to both charges.

89In relation to Charge 19, common assault, you are convicted and sentenced to six months' imprisonment.

90In relation to Charge 20, common assault, you are convicted and sentenced to six months' imprisonment.

91In relation to Charge 21, common assault, convicted and sentenced to one months' imprisonment.

92And in relation to Charge 22, common assault, you are convicted and sentenced to three months' imprisonment.

93Charge 15 is the base sentence.  That is five years.

94I announce the following orders for cumulation:  Six months of the aggregate sentence imposed in respect to the first 14 charges, one year of the sentence imposed with respect to both 17 and 18, and one month in respect to charges 16, 19 and 20, are cumulative upon each other and upon the sentence imposed in respect to Charge 15.

95That makes a total effective sentence of seven years and nine months. I fix a non-parole period of five years.

96Is the PSD 408 days?

97MS HASSAN:  I am sorry?

98HER HONOUR:  PSD?

99MS HASSAN:  Is 442 days including today, Your Honour.

100HER HONOUR:  Four forty-two, all right.  Thank you.  I declare that you have spent 442 days in pre-sentence detention, and I direct that that be entered into the records of the court.

101Pursuant to s.6AAA of the Sentencing Act 1991, I say but for your plea of guilty, I would have imposed a sentence of 11 years with a non-parole period of eight years.

102Pursuant to s.6F of the Sentencing Act Victoria, you are sentenced as a serious sexual offender in respect to Charge 18, and I direct that that be entered into the records of the court.

103In relation to the Sex Offenders Registration Act, the provisions do apply. Rape and attempted rape are Class 3 offences. Registration is not mandatory, but it is discretionary, and the power to make a registration order in this case means that I must apply the tests set out in the case of Bowden v The Queen,[10] and the enquiry to make a registration order is a two-staged process.

[10] [2013] VSCA 382.

104I am satisfied, as a sentencing court, that the conditions for the making of such an order are present - namely, that you have pleaded guilty to qualifying offences - and I am also satisfied beyond reasonable doubt that you pose a real risk to the sexual safety of one or more persons of the community.  I have regard to the factors relevant in this case - that is, the brazen and predatory nature of the offending in making a finding that the conditions for the making of such an order are met.

105Therefore, I make a final order that you must comply with the reporting obligations under the Sex Offenders Registration Act for a period of 15 years, and that you will be registered under that act.

106To complete the matter, written notification of the SORA requirements has been prepared.  That sets out important information about your obligations under that, Act, and that can be provided to you Mr Macarthur.

107Mr Ginsbourg, would you mind just accompanying my associate and ask that your client acknowledge receipt of that material?  I think that covers everything, Ms Hassan.

108MS HASSAN:  Yes it does, Your Honour.

109HER HONOUR:  Yes, all right.  I am sorry to have delayed everyone, but I think it is important that I raised the case of Shrestha v The Queen with you both this morning.  That concludes my sentencing remarks.

110MR GINSBOURG:  Yes, Your Honour. 

111HER HONOUR:  All right, thank you.  We can adjourn.

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