Director of Public Prosecutions v Martin

[2024] VCC 297

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00407

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS MARTIN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2023 & 12 March 2024
DATE OF SENTENCE:	15 March 2024
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2024] VCC 297

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:          Rape – fail to answer bail - contravene family violence intervention order

Legislation Cited:  Sex Offenders Registration Act 2004 (Vic)
Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:4 years 3 months' imprisonment, non-parole period 2 years 8 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr A. Malik	Victoria Legal Aid

HIS HONOUR:

1Travis Martin, you have pleaded guilty to an indictment containing five offences of rape, all of which were committed against the same victim between
1 February 2007 and 31 July 2007 when you were aged 20 and 21.  Your victim during that time was aged 16.  The maximum penalty for rape is imprisonment for 25 years. 

2You have also pleaded guilty to, and asked me to take into account, two related summary offences: one of breaching bail, for which the maximum term of imprisonment is two years; and one of breaching a family violence intervention order, for which the maximum penalty is also two years.

3You have admitted prior convictions.  The prior convictions were three in number, the first being an appearance at the Warrnambool Magistrates' Court on 4 August 2003 for assault by kicking - an unlawful assault - when you were aged 17, for which you were fined $300 without conviction.  The next was at the Ararat Magistrates' Court on 6 May 2005 for hinder police when you were aged 18, for which you were fined $400 with conviction.  The third was at the Ballarat Magistrates' Court on 4 May 2006 for unlawful assault when you were aged 19, when you were fined $750, again with conviction.

4You have, since then, accumulated a number of other court appearances and convictions.  I will deal with them in more detail in a moment.  But the further matters for which you have appeared in court since this offending have resulted in terms of imprisonment for offences, including rape, for which you have served a considerable period of time in custody.

5The prosecution provided me with an outline of submissions on the plea hearing, dated 3 November 2023.  In it they set out the circumstances in which the offences were committed.  I am not going to go through it in detail, but suffice to say that Charge 1 of rape occurred between 1 February and 31 March 2007 after you had started living with your victim who was then aged 16 and you were aged 20. 

6On an occasion when you were having sexual intercourse with her, you called out the name of a previous girlfriend which caused your victim to push you away and become upset.  However, you persisted with your desire to continue sexual intercourse with her.  You forced your penis inside her vagina despite the fact that she told you to get off and to stop.

7The next offence, Charge 2, occurred between 31 March and 30 June 2007.  It occurred shortly after you had moved in to a caravan with your victim.  You pushed her onto the bed in the caravan, pulled down her pants and underwear and forced your penis into her vagina.  She told you to stop and you said, words to the effect, that you knew that she liked it.  You pinned her down and continued to penetrate her.

8Charges 3 and 4 occurred on the same occasion upon which you had tied up your victim.  She had been tied for the whole day.  You put your face between her legs, rubbed your beard against her legs and performed oral sex on her and that is Charge 3.  Then you put your penis into her vagina and had penile vaginal sex with her against her will. 

9The final charge, Charge 5, occurred between 31 March 2007 and 31 July 2007.  You went to the home of the foster mother of your victim and you forced her to have penile vaginal intercourse on a waterbed.  Your victim tried to get away but you pinned her to the floor and punched her on the back until she stopped moving.  And then you continued to finish the act of sexual intercourse with her.

10The relationship broke up at about that time.  She obtained a family violence intervention order against you.  A child was born to the relationship in early 2008.  The matter was not reported to the police until 2018.  A statement was taken from your victim on 3 September 2018.  Police attempted to interview you whilst you were in custody on other matters on 5 November 2018.  You refused to leave your cell to be interviewed.    

11On 5 August 2019 you were released from custody on other matters.  On
7 August 2019 you had contact on Facebook with your victim in breach of the family violence intervention order.  You were arrested by police on
15 August 2019 for that breach and interviewed.  You indicated that you had sent the messages but did not realise that the family violence intervention order was still in force.  You were released on summons.

12On 25 September 2019 you entered bail in relation to the rape charges, the subject of the indictment that is currently before the court.  The hearing of the matter was adjourned to 21 January 2020.  You failed to appear in answer to your bail.  Those two matters are the subject of the two related summary offences to which I have referred.

13Your victim provided a victim impact statement.  Your counsel provided me with a written outline of submissions, and with further written submissions on 12 March 2023.  The first written submissions were directed to an application for a sentence indication.  I gave a sentence indication to the effect that I would impose a total effective sentence of four years and three months imprisonment with a non-parole period of two years and eight months.  After consultation with your counsel, you accepted that indication.  As a result, you pleaded guilty to the matters that I have outlined.

14Looking at the circumstances of the offending and looking at current sentencing practice as it existed in the period of the offending in 2007, and taking into account your age and your criminal record, the offending conduct would undoubtedly have, on its face, justified a more severe sentence than the total effective sentence of four years and three months.  However, that is not the end of the story.  There are a number of other matters that bear upon the question of whether that is an appropriate sentence.  I confirm of course that, having given that indication, the indicated sentence is what I will impose at the end of the day.  There is no question that I would be going back on the sentence indication that I gave which led to your pleas of guilty. 

15Your pleas of guilty were tendered in circumstances where we were near the end of the period of harsh restrictions upon prisoners during the Covid pandemic.  Since April of 2020 you have been in custody for a very substantial part of the period covered by those Covid restrictions. 

16There has been a very significant burden upon the criminal justice system arising from the interruptions to the court processes during that period.  It has resulted in people being kept in custody for longer than is desirable.  It has resulted in the Court of Appeal indicating that substantial discounts are appropriate for persons who choose to plead guilty, rather than contest criminal charges.  Such pleas contribute to an easing on the pressure on the criminal justice system.

17You are to be given full credit for your pleas.  I note that the various mental impairments from which you suffer and your conduct generally are relevant.  The period during which you have been in custody has been substantially in lockdown and solitary confinement.  Perhaps largely through your own choice and as a result of your own behaviour, you have been significantly isolated from other prisoners during that period. 

18You will have now served - with ‘emergency management days’ - the full term of the head sentence that I have outlined of four years and three months.  You have done so in circumstances where your period in custody has been particularly burdensome arising from the restrictions that applied during the Covid pandemic.  But also arising from the various personality traits that have been outlined in Dr Barth's report.  They have contributed to your lack of cooperation and your inability to function well in the prison environment.  And all of that must be taken into account in assessing an appropriate sentence. 

19Dr Barth's report, insofar as it identities borderline personality disorder and anti-social personality disorder as appropriate diagnosis for your dysregulated personality, is relevant.  It supports the prosecution case that you were behaving in a way that was aggressive, entitled and demanding and seriously criminal in your offending conduct towards your victim in 2007. 

20It is not uncommon for there to be a significant gap between offending of that kind, particularly with a 16-year-old, and the reporting of that conduct to police.  There was a significant gap in this case.  In the intervening period, you have appeared before the courts on a number of matters. 

21Looking at the history of your offending since the relevant offending conduct, you appeared before Her Honour Judge Gaynor and were sentenced on
11 December 2008 for an armed robbery and other offending which occurred on 4 August 2008.  Her Honour sentenced you to three years’ imprisonment with a non-parole period of one year, declaring 129 days as time to be reckoned as served on the sentence that she imposed.  You were released from custody from that sentence in August 2009. 

22But you engaged in offending for which you subsequently appeared before His Honour Judge Howie, that offending having occurred between 20 September 2009 and 7 September 2009.  In other words, the offending occurred a short time after you had been released from the sentence that Judge Gaynor imposed.

23The consequence of that was that your parole was cancelled and you were required to serve the full three years head sentence that Her Honour Judge Gaynor had imposed.  Following that, you appeared before His Honour Judge Howie and were sentenced to a total effective sentence of three years and six months’ imprisonment, with a requirement that you serve 18 months before being eligible for parole. 

24So during the period following that sentence and following the sentence imposed by Her Honour Judge Gaynor, you have served something in the order of four years and six months’ actual time in custody.  The offences for which you appeared before His Honour Judge Howie were sexual offences.  They give rise to the obligation that I treat you as a serious sex offender in relation to each of the five charges on the indictment for which you have pleaded guilty before me.  I will come to the consequences of that in due course.

25I note from your record that you were sentenced to a further 16 months imprisonment in 2018.  So you have served a significant period of time in addition to the four years and three months or thereabouts that you have already served as a result of your being in custody on these matters. 

26The reason I outlined all this is that firstly, at the time of the offending you were aged 20 and 21; and secondly, that you have served, or will have served something in the order of eight years and three months by the time you are released on these matters.  The non-parole period that I impose has absolutely no effect on the total time that you have been in custody.  In addition, there was the further 16 months that you spent in custody following convictions in 2018.

27For a person with your personality profile, although it is not clear from the report of Dr Barth, it seems to me that it would have been hard for you to have coped with the prison environment.  Indeed, all the indications are that you have had considerable difficulty in coping.  Your sporadic appearances before this court in the lead-up to your plea of guilty, your inability to face the consequences of your actions to attend court as required and the death of your grandmother occurring during the period when you were in custody, have all contributed to a period of incarceration from which it seems to me you run the risk of becoming institutionalised.  Although you will shortly be released and will be assisted to some extent by the after-care that is offered by the Australian Community Support Organisation, it will not be easy for you to settle back into the community. 

28I am bound to take into account your youth at the time of the offending, that at the time of this offending you had not acquired a significant criminal record, nor had you had any prior criminal record in relation to sexual offending.  You have of course since acquired convictions for sexual offending.  Dr Barth's assessment is that you pose a moderate-to-high risk of sexual recidivism.  That is a matter of concern to the court. 

29It is also a matter that I have to take into account in a formal way, as a result of the operation of the Sentencing Act.  I am required to sentence you for each of these five offences on the indictment as a serious sex offender.  That means that protection of the community is the paramount consideration and that I would be entitled to impose a disproportionate sentence to achieve that objective.

30The prosecution has not asked for a disproportionate sentence and I do not propose to impose one.  The sentence that I have indicated does not reflect that.  But nevertheless, I am required to impose sentences upon you for each of these offences as an offender who is a serious sex offender.  Which would ordinarily mean that each of the sentences that I impose for the individual offences would have to be served cumulatively unless I indicate otherwise.  I have the formed the view that that is not appropriate and that the totality principle is such that a substantial degree of concurrency is required in order to achieve a just sentence. 

31The prosecution provided me with an outline of submissions on the plea dated 8 March 2024 stressing those factors and aspects of Dr Barth's report which do not support the proposition that there is a serious risk to your future mental health of further incarceration.  I do not have the slightest doubt that you have done your time extremely hard and that that has been substantially as a result of your mental impairments, which seem to me be substantial.

32Your counsel has not sought to persuade me that your mental impairments as outlined by Dr Barth are such that it should reduce your moral culpability.  It is clear that you knew that what you were doing was wrong.  I must give proper weight to the need to protect the community. 

33On the face of it, a total effective sentence of four years and three months for these matters would seem to be light.  But if one looks at your history of incarceration during the period between this offending and now and takes into account your age at the time of the offending, then despite the serious nature of the offending, the sense of entitlement that you displayed and the callous nature of much of your conduct towards your victim, it seems to me that if you had been sentenced at a time proximate to the period of the offending for the totality of your offending by His Honour Judge Howie in June 2012 the total sentence would be such that a sentence in excess of four years and three months for these offences alone would have been unjust.

34As a result of your guilty pleas you are registerable under the provisions of the Sex Offenders Registration Act.  You will be required to comply with the reporting obligations imposed under that Act for life.  You will be receiving a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  You will receive a copy of that list of obligations in due course. 

35Moving on to imposing sentence upon you.

36For the offence of rape, the subject of Charge 1, you are convicted and sentenced to imprisonment for four years.

37On Charge 2 of rape, you are convicted and sentenced to imprisonment for four years.

38On Charge 3 of rape you are convicted and sentenced to imprisonment for four years and three months.

39On Charge 4 of rape you are convicted and sentenced to imprisonment for four years and three months.

40On Charge 5 of rape you are convicted and sentenced to imprisonment for four years.

41On the related summary offence of breaching bail, you are convicted and sentenced to imprisonment for a period of one month.

42On the related summary offence of breaching a family violence intervention order, you are convicted and sentenced to imprisonment for two months.

43All of the sentences are to run concurrently. 

44The total effective sentence is therefore four years and three months.

45I direct a non-parole period of two years and eight months.

46I declare 1,513 days, is that agreed?

47MR ALBERT:  Yes, Your Honour.

48HIS HONOUR:  So, I declare that as time to be reckoned as served on the sentence that I have imposed. 

49But for your pleas of guilty, I would have sentenced you to imprisonment for a period of six years with a non-parole period of four years.

50MR MALIK:  As Your Honour pleases.

51HIS HONOUR:  Now is there anything else that I need to deal with?

52MR MALIK:  No thank you Your Honour.

53MR ALBERT:  No, Your Honour.

54HIS HONOUR:  The notice of reporting obligations will be sent to the prison.  Mr Martin I am going to assume that you acknowledge that you will be receiving the notice of your obligations rather than - - -

55OFFENDER:  Yes, Your Honour.

56OFFENDER:  May I just say, um, this is the first time for a start, that I've been given an actual diagnosis.  Second of all, it's the first time that I've been able to just so – solely focus on myself and not have to get out and look after my grandmother.  So, I am gonna give it a red hot crack.  And – and do my absolute best.

57HIS HONOUR:  Well Mr Martin I'm pleased to hear that and hope that you're able to knuckle down and make good your intention.

58OFFENDER:  Thank you, Your Honour.

59HIS HONOUR:  And I thank counsel for their assistance.  I have been given considerable assistance in terms of current sentencing practice and the law in relation to sentencing for relatively historic offending conduct.  Yes, thank you.

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