Director of Public Prosecutions v Martin

[2024] VCC 2005

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02290

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MARTIN

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF HEARING:	2 December 2024
DATE OF SENTENCE:	10 December 2024
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2024] VCC 2005

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Rape – sexual assault

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R [2013] 249 CLR 571; DPP v Macarthur [2019] VSCA 71

Sentence:  5 years and 3 months’ imprisonment

NPP 3 years and 3 months            

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr G. Davis	Rolfe Criminal Law

1Christopher Martin, you have pleaded guilty to one charge of rape. It is a rolled-up charge where you digitally penetrated the complainant on two occasions.  The maximum penalty for this offence is 25 years’ imprisonment.  You have also pleaded guilty to one charge of sexual assault against the same complainant.  The maximum penalty for this offence is 10 years’ imprisonment.

2The offences were committed by you when you were 31 years old, against your partner at the time who was between 28 and 29 years of age.  The three incidents were committed in your family home while your children were present.

3You commenced a relationship with your partner in October 2011 and married in March 2014. It began to fall apart in 2020 before you ultimately separated in February 2021.  Your relationship was dysfunctional at times as you displayed aggressive and violent behaviour towards your partner, particularly towards the end of the relationship. 

4You have three children together, all of whom now reside with their mother. Previously you assisted with their care when you were at home. However, your relationship deteriorated and you committed the offences. An interim intervention order was taken out soon after the last incident.  A full and final order is now in place and you have not had any contact with your former partner and family since that time.

5The summary of prosecution opening is agreed to be an accurate account of events. It includes references to other misconduct evidence that is not covered by the indictment.  This evidence forms part of the narrative and places the charged acts into context.  A general summary of the facts is as follows:

6In January 2020 the complainant learnt that you engaged in sexualised conversations with other women on the internet.  Your sex life with the complainant became strained after this.  You would get angry and aggressive towards her and your children if she declined to have sex with you.  You would acknowledge your behaviour and say that it was because you were full of testosterone.  You would say things to the complainant such as 'maybe if you suck my dick or let me fuck you, I’d be more motivated for life.'  Sometimes the complainant would acquiesce and agree to have sex with you.

7During the relationship she told you she felt violated and raped.  You would laugh and say, 'there is no such thing as rape when you are married'.

8In July 2020 you engaged with a marriage counsellor. Regrettably, this failed to address your marital issues.

9The first incident, which is part of Charge 1, occurred on 15 October 2020.  Your children were in bed.  You joined the complainant in your bedroom and laid on top of her, positioning yourself in an all-fours position with your legs on either side of hers and your right arm resting by her shoulder.  You started to kiss her neck while running your hands over her breasts and clothing.  She was wearing a singlet and shorts at the time. 

10You moved your left hand down and rubbed the complainant’s vagina over her shorts, before you penetrated her with two fingers over her shorts which also went inside her vagina. The length of your fingers went roughly halfway in, for about 10 seconds.  The complainant said 'no' and began to struggle and wriggle.  You pinned her hands above her head and she continued to say 'no' multiple times. 

11Eventually the complainant wriggled her leg out and kneed you in your genitals.  This sent you into a rage and you stated, 'fuck, look what you did'.  You walked into the ensuite and punched the doorframe multiple times, causing your knuckles to bleed.

12After this incident your relationship became more stressful and difficult.  You stopped sharing your bed and you slept on a fold-out sofa when you were at home.  On a few occasions you would try to have sex with your partner, but she refused. The only time you had consensual intercourse after this incident was around the time of your partner’s birthday in November 2020.

13Charge 2 was committed on 5 February 2021.  At around 7.00 pm, you and the complainant were sitting at the dining table while the children were in their playroom.  You picked the complainant up, carried her into your son’s bedroom and laid her on a mattress on the floor.  You laid on top of her, using your full weight.  The complainant’s arms were wedged between her body and yours.  She pushed herself up to try to get away from you.  She said, 'we are not doing this' and you responded saying, 'it’s okay, you’re going to like it'.

14You proceeded to touch her body and rub her vagina over her clothes.  The complainant yelled for help and your four-year-old son ran in.  He started to kick and punch you and said, 'get off mummy', which you did.  You and the complainant then put the children to bed and you left the address. 

15The final incident which is part of Charge 1 was committed on 7 February 2021.  At around 6.30 pm, you were at the family home.  The children were in the bath while the complainant was in the kitchen.   You pushed the complainant down the hallway towards the bedroom.  She had both her arms out saying, 'no Chris, no'.  You then picked her up and carried her to the bedroom.  You threw her onto the bed, held her arms above her head and removed her pants and underwear.  The complainant screamed, 'you don’t want to do this, please don’t do this'.  You responded, 'see what you’re doing to me, I’m so sexually frustrated'.  You then penetrated the complainant’s vagina, putting two fingers inside her.  She continued to scream, 'you don’t want to do this, please don’t do this'.

16The complainant was terrified.  She tried to wriggle away but was unable to.  You then started to pull your pants down before the same son ran in.  When he entered the room, you got up and started to cry.  You went into his room and continued crying.  The complainant came into the room and you stated, 'I almost raped you'.  You said, 'we haven’t had sex in months, you can’t expect me to live like this'.  You then admitted to her that you did not have control of your sexual desire.  You eventually calmed down before you left the premises.

17Later that night the complainant contacted a friend saying that it had happened again.  Further, that you had forced her into the bedroom and forced her to have sex with you.

18After the offending occurred you spoke to the complainant and told her that if she ever wanted the relationship to work, she would have to have sex with you even if she did not like it.  You told her that you needed it, even though you knew you did not deserve it. 

19On another occasion you were at the family home and asked the complainant if she was 'going to fuck [you] tonight'.  She said 'no' and you repeatedly started to punch the bedroom door of your youngest son, who was in bed. You picked up a stool and threw it into the dining room where your son, who had intercepted your sexual offending, was standing.  You then stormed out of the front door.  This was the last time you and the complainant saw each other.

20A couple of days later you sent the complainant a message stating, 'I just wanted to say I’m sorry for my actions the other night, it was way over the top and something that I really regret'.

21On 24 March 2021, the complainant contacted police, and their investigation commenced four months later. 

22On 5 October 2021 you were placed under arrest and cautioned before you participated in a record of interview. Despite denying some sexual offending, it was broadly a confessional interview where you made a number of general admissions in respect of your relationship and the complainant’s allegations, including:

·        Your relationship went out of control and things became 'toxic'. You wanted to make it work and that is where the digital raping became involved.

·        When you tried to talk about your relationship you would try to hug the complainant.  You said, 'I guess I got forceful because she said no and I didn’t want that, I wanted her to want me'.

·        When asked about the incident where the complainant kneed your genital area, you said that you did not remember if that occurred.  However, you also admitted that in your relationship you had penetrated her vagina with your fingers through her shorts.

·        The complainant’s version of Charge 2 was put to you, and you agreed with her account.  You said that your son just stood at the door.  You agreed that your son started to punch and kick you as he was protective of his mother.

·        The last event was also put to you in your interview, which you said was the worst incident.  You knew that the complainant did not want to go into the bedroom as she said 'no'. You agreed that you applied some force to get her there. You heard the complainant scream 'you don’t want to do this, please don’t do this'. You digitally ripped her pants off but said her underwear went to the side.  You then digitally raped her.  Although you admitted that you were sexually frustrated at the time, you later denied putting your fingers inside her vagina.  You then agreed that your son entered the room and that you stopped and started to cry.

·        You agreed that at that time you did not have control of your sexual desire, that you had a very high sex drive and that it was fortunate that your son had come in when you had your pants down. You felt your behaviour at the time was not in 'the right headspace back then'. 

·        You denied ever saying there was no such thing as rape in marriage.

23You were initially charged on 29 April 2022 with three separate offences of rape, one charge of sexual assault and two charges of assault with the intention to commit sexual offences.  You were released on bail and have not spent any time in custody until your plea was heard on 2 December 2024.  Your matter was listed for a contested committal in November and December 2022.  The committal proceeded and you were committed to stand trial as you pleaded not guilty to all charges.

24Defence issues relating to a lack of defence response, potential fitness for trial and lack of private funding occurred in the context of the delay of fixing trials associated with the pandemic. Your trial was eventually listed on circuit in Ballarat in July 2024.  The matter could not proceed as you did not have the capacity to pay for the trial and had applied for representation by Victoria Legal Aid. Your application was accepted and you changed your solicitors and defence counsel. Your matter was adjourned to the current circuit and the trial was listed to commence in November 2024.  Prior to the hearing, the matter resolved and you have now pleaded guilty to an updated indictment.

25Your counsel has acknowledged that it is puzzling why your case dragged on. You now agree that you should have offered to plead guilty at an earlier opportunity and that the running of a committal was largely pointless given the answers you gave in your record of interview. 

26I am advised that you were led to believe from your initial privately funded representatives that you had a good defence. Your solicitors were changed, negotiations soon started between your current counsel and the prosecution, and your matter has now resolved.

27While there is an absence of the mitigating factor of an early guilty plea given that you ran a contested committal, I accept that effectively your plea was entered as soon as you were appropriately represented.  I accept that you made general admissions in your interview that eventually resulted in your guilty plea.  When you received responsible legal advice and were shown the content of your record of interview, your plea was entered within a relatively short time.  In those circumstances, I do take your plea of guilty into account in your favour.

28Under your previous representation, you ran a committal where the complainant was challenged regarding her honesty, despite the broad confessional context of your police interview. This confuses the issue of remorse, although I am ultimately satisfied that you have remorse.

29You were originally facing six offences. The updated indictment is to a less significant series of offences.  You are entitled to receive a benefit for your guilty plea. It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the complainant the ordeal of giving evidence and undergoing further cross-examination.  Your plea of guilty has facilitated the efficient administration of justice and you are entitled to a benefit for that.

30Your guilty plea was entered at a late stage. The evidence against you was clear for a long time. In the circumstances I have outlined, I accept that you do have some remorse despite the fact that it was not immediately forthcoming. I take that into account in your favour. I also accept that your plea of guilty demonstrates an acceptance of responsibility for your offending, which is also consistent with remorse.

31I am told that you experienced distress when charged with these offences, some of which were discontinued. I accept that the delay has been a source of anxiety for you, notwithstanding that it was caused by your pleas of not guilty for a lengthy period. You have used the intervening period to undertake treatment, being a 22- week course at Berry Street called 'Dad’s Care'.  You report that your attitude and outlook on life and relationships has changed since the charges were laid.  You have commenced a new relationship and developed insight into your problematic behaviour. I am also aware that the delay has been a significant source of anxiety for the complainant. 

32All sexual offences are crimes of violence that cause harm to the victims.  Any sexual activity that takes place without consent is wrong and must be denounced. You and the complainant were in an intimate relationship for more than nine years, which included regular sexual activity.  It is conceded that your offending represented a breach of trust within your relationship.  Your criminal offending has had a long-lasting and substantial effect on the complainant. 

33Your former partner read aloud to the court a victim impact statement dated 28 November 2024.  In that statement, she describes that 1,252 days ago she began the journey to seek justice, and she has suffered throughout that time.  It was only after your guilty plea was entered that she felt that her life was back on track.

34She has suffered an immense amount of pain, judgement, criticism and anxiety from your offending, especially when 'the perpetrator is your husband and biological father to your children.'

35She continues to experience flashbacks of your abuse and describes that she has wondered whether your offending was her fault as she could not control your impulses. At times, she felt guilt and remorse towards you as she was initially fixated that she was somewhat accountable for your misconduct.

36She states that by making her relive the trauma through running a contested legal process where she was cross-examined, she relived the darkest moments in her life.  She was belittled, humiliated and left feeling worthless. The burden of the past has continued to deprive her of closure and justice.

37It is clear that you betrayed her trust in you and that she is still repulsed by your misconduct.  It has an ongoing impact that has continued to shape her life.  She has accessed professional assistance to overcome the residual effect of your offending. Fortunately, the complainant has been in another relationship for some time, although she still finds it difficult to let herself become vulnerable again and entrust that she will not be hurt. She appears to be grateful for the support she has received from others, both in court and overall.

38The effect of your offending has also had a significant impact on one of your children who is now aged eight years. The complainant writes that there are no words that will ever truly capture what your son has been forced to take on since the acts of violence were conducted against her.  He still struggles with severe anxiety and he describes you as 'nasty' and that you 'hurt his mummy too much'.  He was diagnosed with PTSD in May 2022. He had already been diagnosed with ADHD and autism and now requires additional treatment to try to manage his traumatic issues. 

39Hopefully, the entering of your guilty plea results in your former partner and family being able to put your conduct behind them.  I take the relevant parts of the victim impact statement into account.  Your offending conduct has clearly had an ongoing impact on the complainant and your son’s daily life. Given that the court proceedings have concluded, the path towards healing the complainant and the children is now in place. She may be able to put your conduct behind her and achieve a more positive future for them all.

40I turn now to your personal circumstances.  You were born in August 1989 and are now 35 years of age.  You are the youngest in a sibship of three and also have six half-siblings from your parents’ earlier marriages.  You are a member of a loving family, and your mother, sister and current partner were present at your plea hearing.  They remain supportive of you and you are most fortunate in that regard. Your father now resides in a nursing home. 

41Your father worked when you were a child and your mother stayed home to care for the children.  You were a productive child who did well at school and enjoyed multiple sports.  You started to work while you were at school and you have continued to work throughout your adult life.

42However, your father was a difficult man who had issues with discipline.  He had trouble with drinking alcohol which may be a precursor to your subsequent behaviour.  While there is no suggestion that Bugmy v R[1] considerations are relevant, this remains a feature of your background.

[1] [2013] 249 CLR 571.

43A psychological report was prepared for another issue in this case, although it has not been tendered. I am told that you were assessed as having a low to average range of verbal intelligence. 

44You have a strong work history, undertaking forms of employment at an abattoir, in construction and predominantly working in the mining industry. You started at the Fosterville Gold Mine in a diamond drilling team for a subcontractor, before you learned how to operate the drills yourself.  You were employed as a mine employee on a fulltime basis for some time and would often work away from home on a week on/week off arrangement.  Sometimes you were at home for as little as one week per month. You believe that although you earnt a good income, your separation from you partner and family was a factor that resulted in your marriage breakdown.

45You have continued to work after your separation and recently you have been at the Victory Minerals Underground Mine in Ballarat. You recently left your job as you accept that your offending will result in the imposition of a gaol term. 

46You have been in a relationship with your current partner for over 18 months.  She has provided a written reference and also gave character evidence on your behalf.  You disclosed to her the charges you faced soon after you met. You have also disclosed to her your remorse for what has happened and said that if you could change what occurred, you would. You have taken ownership for your offending. Her belief is that you are devastated by your conduct, as well as the effect it has had on your children.  You have not seen them for more than three years and you miss not having them in your life.

47In her opinion, you are totally different to how you were in the past. She stated that your offending conduct is a real disconnect to the man she knows.  You have been kind, loving, caring and considerate throughout your relationship.  You have never been violent or aggressive towards her.  She has three children and they rely on you as a wonderful role model for them. You take your role as caring for her children as if they were your own.  She states that you have built a life together. Since you moved in with her in August last year you have been inseparable.  She, her friends and family all love you and you are at peace together.   It appears that the consequences of your offending will have a significant impact on your partner and her children. Her support is an important factor when determining your rehabilitation prospects.

48I have received nine other character references from four sources - your family, your current partner’s family, your friends and work colleagues. They confirm that you are a decent and hardworking person who is caring and loving.  The impact of your criminal conduct over the past few years has had a significant impact on you.  You have demonstrated remorse and been committed to turning your life around.  I take the content of these references into account. 

49There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use or other related substance abuse problems.  You do not suffer from any mental health disorder.  You have maintained the support of a loving family.  You have commenced a new relationship and have remained out of trouble. You report that your attitude and outlook on life and relationships has changed since these charges were laid. 

50You have no prior convictions and do not have any other criminal matters outstanding.  You have been subject to an intervention order since soon after you were charged and you have been placed on bail for more than three years.  You have complied with these court orders.  You are someone of previous good character. You are entitled to call upon that good character on your plea. I accept that your prospects for rehabilitation have improved considerably and are now very good.

51In a letter to the court from your optometrist dated 18 November 2024, it confirms that you have a bilateral ocular condition known as keratoconus, a corneal disease which is advanced in both of your eyes.  The report confirms that this issue often results in significant visual impairment due to a high degree of irregularity in the corneal surface or the window of the eye.  In the absence of contact lenses, you have a significant disability to your right eye. You state that you are worried about your ability to maintain the use of contact lenses while in custody and whether you will be able to see while in prison.  You are essentially blind in one eye without using contact lenses. The court has provided this document to custodial services for your assistance.

52The charge of rape attracts the standard sentencing provisions outlined in the Sentencing Act 1991.[2]  The standard sentence is one where the Act specifies the appropriate sentence for an offence in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of that offence.  The relative standard sentence is 10 years’ imprisonment.

[2]s5A(1B) Sentencing Act 1991

53The objective factors are to be determined without reference to matters that are personal to a particular offender.[3]  There are several factors that are relevant when assessing the objective gravity of the offending.  These include:

·        The charge relates to two separate incidents.

·        You and the complainant had been in a relationship for around nine years and had three children together.  At the time of the first incident, you were living together.  You stopped sharing a bed after it occurred.

·        You were separated when the second incident of rape was committed.

·        The incidents of penetration occurred despite the complainant saying 'no' and 'please don’t do this'.

·        none of your offending was protracted or premeditated.

·        There is no evidence that the complainant suffered any physical injury.

·        You grossly abused your partner.  This is a significant breach of trust.

·        Your offending occurred in your family home. Your children were present and one child has ongoing issues. He witnessed one of the incidents that forms part of Charge 1. This is an aggravating feature of your offending. He also witnessed the conduct of Charge 2.

·        Digital rape does not ordinarily involve some of the risks associated with unprotected penile rape being unwanted pregnancy or transfer of a sexually transmitted disease. In assessing the gravity of your offending, I take into account that both these incidents did not carry some of these risks.

[3]s5A(3A) Sentencing Act 1991

54I take the standard sentence into account as one of the factors relevant to the instinctive synthesis of imposing sentence.  I accept that it is a guidepost to be considered when determining the appropriate sentence in this case.  I also take the maximum penalties into account. Despite Charge 1 being a rolled-up charge with two incidents, I accept that the objective gravity is below mid-range.

55In addition, I am required to fix a non-parole period which is at least 60 per cent of the total effective sentence, unless it is in the interests of justice not to do so.[4]

[4]s11A Sentencing Act 1991

56There is no discrete category of rape for digital penetration nor is there a hierarchy of the seriousness of penetrative offences. Digital rape is not necessarily less serious. It involves an assessment of the gravity of the offending on the particular facts of any case.[5]

[5]DPP v Macarthur [2019] VSCA 71 at [81]

57It is clear that your conduct has had a significant impact on the ongoing emotional state of the complainant. The seriousness of your offending has been conceded. Taking all the circumstances of your offending into account, in particular the breach of trust of your former partner in the context of domestic violence and in the presence of your children, I consider this to be a serious example of criminal offending.  

58You accept that the gravity of your misconduct warrants the imposition of a term of imprisonment. I consider that a lengthy term of imprisonment is the only appropriate disposition.  General deterrence must be given significant weight in the sentencing process, as must the factors of denunciation, punishment and protection of the community.  I consider that specific deterrence must have some weight in the sentencing process, although in a more limited way in light of your lack of criminal history. 

59I am also required to balance your prospects of rehabilitation. It appears that you have undertaken a period of self-reflection since you were charged. I accept that it has been ongoing for some time and that your prospects are very good, in all the circumstances.

60I take into account the principle of totality which is relevant, and I have taken care not to doubly punish you for the offences. I am required to impose a sentence that is proportionate to the gravity of your offending overall.  I have decided that there must be some but not total cumulation in the sentences that I impose.

61Balancing these factors as best I can, I sentence you as follows.

Charge no.	Charge	Sentence	Cumulation
1	Rape	5 years’ imprisonment	BASE
2	Sexual assault	9 m onths’ imprisonment	3 months
TES	5 years and 3 months’ imprisonment
NPP	3 years and 3 months
PSD	8 days
S6AAA	7 years’ imprisonment with a non-parole period of 5 years

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