Director of Public Prosecutions v Martinelli (a pseudonym)

[2024] VCC 1811

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES MARTINELLI (a pseudonym)
BRENDAN TOWNSEND (a pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2024
DATE OF SENTENCE:	12 November 2024
CASE MAY BE CITED AS:	DPP v Martinelli (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1811

REASONS FOR SENTENCE
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Subject:   Criminal law - sentence     

Catchwords:             Plea – Martinelli - 3 charges rape - 1 charge sexual assault – 3  victims drugged, two victims rendered unconscious raped and filmed – one victim became pregnant – highly depraved activities -  general   and specific  deterrence – mitigating circumstances – delay – Borderline Personality Disorder – dysfunction – whether Verdins principles enlivened

Townsend -1 charge sexual assault -  filmed  rape of one victim

Sentence:                 Martinelli - 14 years imprisonment   - 10 year  non-parole period
  Townsend – 570 days  imprisonment  -  time served.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Caruso	Office of Public Prosecutions
For the Accused Martinelli For the Accused Townsend	Mr P O’Halloran Ms K Ballard	SLKQ Lawyers Leanne Warren & Associates

HER HONOUR:

1James Martinelli[1] has pleaded guilty to three charges of rape and one charge of sexual assault. Brendan Townsend[2] has pleaded guilty to one charge of sexual assault.

[1] A pseudonym.

[2] A pseudonym.

2James Martinelli raped three women, his wife and two other women, on three separate occasions during 2020.  He sexually assaulted one of these complainants on the same occasion as one of the rapes was committed, and Townsend was complicit in that assault.

The offending

3Jody Moore[3] was 29 years old when she met Martinelli on a social network application called 'Scout'. At this time Ms Moore was a friend of a woman named Tamara Lucas[4], who put Ms Moore’s phone number on her profile.

[3] A pseudonym.

[4] A pseudonym.

4On 8 March Martinelli commenced contact with the complainant, thinking it was with Ms Lucas.  Ms Moore replied and commenced chatting with Martinelli. They agreed to meet and use drugs together. They became friends while using methylamphetamine. Ms Lucas would also meet them sometimes.  Ms Moore had told Martinelli that she was a lesbian and was strictly into females.

5On the occasions other than the charged act, Ms Moore later described feeling different after smoking ice provided by Martinelli, describing it as being tired or 'yuck' and formed the belief that it was laced with another drug likely to be GHB.

The first charge of rape, Charge 1

6In late March 2020 Martinelli picked up Ms Moore in his blue Ford Falcon. She described the car as having dark tinted windows. He told her he had just picked up drugs and offered her a smoke, which she accepted. He stared at her while she smoked. She had a second smoke and while she was smoking Martinelli took his seatbelt off, and then hers, and touched her arm. She handed the drug pipe back to him. He seemed annoyed. He touched her arm again, which she ignored, then he moved his hand onto her hip area and under her top. He then moved his hand onto her vagina, over her shorts. She said 'no' and told him to stop. She felt affected by drugs.

7Martinelli started kissing her, climbed on top of her and pushed her seat down. She pushed him off, telling him 'no' and to stop, but he continued. He forced her shorts off, pushed her legs up so they were bent and pushed towards her chest.

8He then inserted his penis into her vagina and thrust backwards and forwards, without using a condom. She pushed him off and told him to stop. He said 'I thought you wanted it'. She said 'No, fuck off'. She said to him 'I said no and tried to push you off, how can you think I wanted it?' This is Charge 1, the first charge of rape.

9Martinelli was angry with Ms Moore and drove her home. She had never had a sexual experience with a male before. She remained in contact with Martinelli, who messaged her constantly, but she never again used drugs with him.

10

A few months later Ms Moore commenced a relationship with Ms Lucas. In October, when Ms Moore was living in Ms Lucas's home, Ms Lucas noticed that

Ms Moore put on some weight, and Martinelli remarked on this when he visited Ms Lucas's home. Ms Moore did not think it was possible that she was pregnant, but in early November she experienced pain and indications of labour, although without recognising this. A St John's Ambulance unit attended but it was not diagnosed that she was in labour, and she refused to go to hospital as Ms Lucas was not permitted to accompany her, because of COVID-19 restrictions.

11Early the following morning while still at home Ms Moore unexpectedly gave birth and she and the baby were rushed to hospital.  She told Ms Lucas that Martinelli had raped her.

12A few weeks later she made a statement to the police and subsequently Martinelli consented to a DNA test, the results of which were consistent with him being the father. 

The third charge of rape, Charge 4

13It is convenient now to move to the third charge of rape which is Charge 4 on the indictment, which involved Martinelli's wife, Glenda Elliston[5].

[5] A pseudonym.

14They had met in 1999 and had a continuous relationship until October 2020, which included experimentation with drugs and sex involving threesomes. They had two children in 2012 and 2013, and from that time they agreed not to involve themselves in the threesomes in their sexual relationship.

15Later, when the sexual relationship became strained, Martinelli told Ms Elliston that he wished to return to having threesomes, but she refused. He then told her words to the effect that he owned her and could do what he liked, that he could take whatever he wanted from her. In particular he said, 'I only cheat because you won’t have group sex, let me skull fuck you or let me have your arse.'

16Martinelli was having relationships with other women and using drugs, eventually using drugs in the family home. Ms Elliston sometimes relented and used drugs with him, and she became too scared to leave him.

17The drug use included GHB, known as juice, and Ms Elliston came to recognise when Martinelli had spiked her drink with it. On an occasion in September 2020 Martinelli exchanged messages with his friend Brendan Townsend about meeting that night, with a plan to 'blow out' Ms Elliston, meaning to spike her drink with GHB and render her unconscious, adding '…then we can go nuts.'

18The meeting did not take place but Martinelli sent Townsend a picture of Ms Elliston lying face down naked with the caption, 'Fwd: blown out.'

19When Department of Human Services became involved with the children, Ms Elliston was required to do a drug test on 5 October 2020, and the result was positive to MDMA. She said that she had never consciously taken MDMA and Martinelli must have put it in her drink.

20Ms Elliston left the family home on 20 October, taking the children with her, and lived with Mr Martinelli's father. This was allowed by the Department, and Ms Elliston then completed 12 negative drug tests.

21In December she took the children to visit their father, staying in a caravan park. Martinelli wanted to have sex with her but she felt unable to do so. Having consumed a small amount of GHB she fell asleep and woke to feel her anus being penetrated by an object, with liquid being inserted into her anus. She then felt Martinelli sucking on her anus. She confronted him, accusing him of it, and he denied it and left the caravan.

22Ms Elliston stated that after this Martinelli tried to get clean from drugs and repeatedly apologised to her. She moved into new premises with the children, and Martinelli visited from time to time. She reported the matter to the police on 17 January 2021.

23Charges 2 and 3 were each committed on the same occasion, and involved the same complainant, Alita Riley[6]. Both offenders are charged with sexual assault, Charge 2, and Martinelli is charged with a third charge of rape, Charge 3.

[6] A pseudonym.

24Martinelli met Ms Riley on the 'Scout' application, and they met several times to use drugs together.

25On one occasion Martinelli drove Ms Riley to a reserve in Melton, where they used GHB. He performed oral sex on her. Sometime later he went to her aunt's home, with his two children, to do some electrical work for her. Ms Riley later told him that what had happened at the reserve was never to happen again as he had kids, and she did not want anything sexual with him. He agreed.

26The friendship continued and she visited his house to use drugs, sometimes with her boyfriend.

27On 19 October Martinelli and Townsend had a text message conversation about her, as there had been an allegation that she had stolen some items.

28The plan was to give her GHB and 'blow her out', that is, to render her unconscious with Martinelli intending to have sex with her. Townsend went along with the plan in so far as a sexual assault would occur. Indeed, the plan went ahead and Townsend filmed Martinelli performing sexual acts upon Ms Riley while she was unconscious. She had not agreed with what took place.

29The video was described in the prosecution summary in considerable detail. It depicts Ms Riley lying naked and face down on the edge of Martinelli's bed. Her lower body was bent over the edge of the bed with her knees on the floor. Some fabric item was placed over her head. Martinelli put his head near her bottom and licked that area several times. He then fondled his penis, positioned himself behind her and rubbed himself against her. He licked his finger, motioned it towards her vagina and rubbed her buttocks. That is Charge 2, the charge of sexual assault, in which Townsend was complicit by filming it. The video was circulated in the group of friends and eventually provided to the police.

30During this incident Martinelli penetrated Ms Riley's vagina with his finger, while she was unconscious. That is Charge 3, rape.

31Martinelli was arrested on 17 August 2021 and Townsend on 24 August 2021.

Gravity of the offending

32The maximum penalties for these offences, as imposed by the legislature, indicate their seriousness. For rape, the maximum penalty is 25 years' imprisonment and for sexual assault it is 10 years. The offence of rape attracts the standard sentencing provisions of the Sentencing Act 1991, under which the standard sentence is 10 years. This is a guide to determining an appropriate sentence and does not displace the instinctive synthesis approach, but does require an objective assessment of the gravity of the offending.

33The images in video form described in the prosecution summary represent depravity and humiliation of a person at the very high end of the range. Not only was there no consent but the complainant was deliberately rendered unconscious in order that the sexual acts could be performed on her. Without having viewed the film, I am satisfied from the description referred to that what was depicted was indeed disgusting and highly depraved, and extremely serious.

34The use of the drug GHB had become the modus operandi used by Martinelli to subdue women to submit to his sexual predation. He felt so confident in its use that he openly discussed the plan in relation to Ms Riley in his messages with Townsend. That absence of any hesitation, but instead the making of a deliberate plan, indicates a shameless determination to subject women to debasement, for his sexual gratification, at a time when the woman concerned was at her most vulnerable, being unaware and utterly unable to object or resist.

35When questioned by police he denied it was Ms Riley in the video, and denied it was circulated to people, indicating an attitude bereft of empathy or remorse. He and Mr Townsend both chose not to answer questions in a record of interview.

36Ms Moore provided a victim impact statement which includes a moving account of how she was shocked and scared at suddenly giving birth.  At first she was not able to hug or even touch her child and she missed time with her that she will never get back.  One day she will have to explain the circumstances of her birth to her child and she worries about that.  She wonders what her life would have been like if she had been able to have a child on her own terms.  Ms Moore's thoughts helped place in context the heinousness of Mr Martinelli's rape of her, resulting as it did in pregnancy, changing her life forever in a way she had not sought.  That adds significantly to the seriousness of the offence.

Martinelli  - personal background and circumstances

37Mr Martinelli, I turn now to your personal background and circumstances. These include the foundations for some mitigating circumstances.

38You are now aged 42. You grew up in a context of violence between your parents, leading to their separation when you were four. You wanted to live with your mother but this was not allowed and you and your sister remained with your father, seeing your mother occasionally. When she was 10 your sister was allowed to live with your mother, but you were not, and you have said that you hated your mother for this.

39Your relationship with her continued to be minimal in your adult life, but you had an ongoing relationship with your father, who later looked after your own children when they were removed from their mother's care by the Department of Families, Fairness and Housing. Both your parents died unexpectedly from illness in late 2023.

40By that time your children had returned to their mother's care.

41You experienced no difficulties at school, either academically or behaviourally, and left after Year 10 to commence an electrical apprenticeship.

42You eventually completed it but had been using drugs which appears to have slowed your completion. You worked as an electrician for 15 years when in 2018 you stopped owing to stressors in your life.

43This was when you sought the therapeutic help for drug use and a mandatory report was made by the practitioner to the Department, leading to removal of your children and their placement with your father. Your partner blamed you for this, and you began behaving recklessly with increased drug use and sexual infidelity, which ended the relationship with Ms Elliston. It was then in the context of the break-up of the family that your reckless behaviour increased.

Diagnoses

44You were assessed by clinical psychologist, Courtney Steffens in August 2024. In her report dated 4 October, Ms Steffens described you as having cognitive distortions about women, believing women want to hurt you and cannot be trusted. She said you showed limited insight into the need for continuous consent in sexual activity and that an intoxicated or unconscious person is unable to give consent.

45Ms Steffens formed the view that your early history of maternal abandonment had contributed to the development of Borderline Personality Disorder, and being untreated, this had predisposed you to episodic Major Depressive Disorder and Polysubstance Use Disorder. She stated that these conditions would have had an impact on your functioning at the time of the offending, soon after the separation from your children and partner.

46Your reported reckless behaviour at that time is consistent with the impulsivity of those suffering from Borderline Personality Disorder, having a significant impact on your ability to regulate your emotions and impulses. Additionally, your increased drug use was likely to have impaired your judgment and led you to inappropriate behaviour. Ms Steffens considered that your long-standing psychological vulnerabilities arising from your adverse life experiences had contributed to a marked decompensation in functioning at the time of the offending.

Verdins

47This raises the possible application of the Verdins principles as to moral culpability, at least in theory, but the difficulty in disentangling the mental health and substance use disorders prevents reliance being placed upon it for the purposes of reduction of moral culpability. That does not exclude its use broadly in terms of mitigation.

48As to whether the Verdins principles in Limbs 5 and 6 apply, there is some limited evidence that the experience of imprisonment will be a greater burden on you because of the disorders from which you suffer. Ms Steffens stated that the custodial environment for those suffering Borderline Personality Disorder can lead to potential for negative incidents with others, and there is a risk of inappropriate or disproportionate responses resulting from misinterpretation, suspicion and conflict.

49There will also be a lack of treatment for your disorders and this may have a negative impact. Your dependent personality may also lead to the risk of institutionalisation, as you come to rely on self-development programs, and become less able to reintegrate into society once released.

50The more positive aspect is that you are using the time in custody to better yourself in anticipation of having more options for when you are eventually released.

Delay

51There has been a long delay between your arrest in August 2021 and the resolution of this matter. You instructed new solicitors in June this year but there is no available information to explain the delay. A contested committal commenced in August 2022 but was not completed until 29 March 2023, an unusually long delay, partly due to the need for adjournments and partly because of court unavailability.

52A Case Conference on 30 November 2023 after some discussions had already taken place seems to have resulted in indecision as to how the matter should proceed, with severance seeming to be the major issue as of April 2024 and the arrangements for trial described as complicated. Nevertheless, a trial timetable was fixed, and by early June moves towards resolution gathered pace. At a Final Directions hearing on 28 June both you and Mr Townsend were arraigned and entered pleas of guilty.

53It is impossible to clearly sheet home any blame for delay in all the circumstances; suffice it to say that the progress of the case has been difficult on many fronts.

54For you, and for Mr Townsend, the experience of uncertainty has been prolonged, and I take that into account.

Plea of guilty

55All indications were that the trial would have been difficult and of some duration. The complainants endured cross-examination at the committal and by all accounts found it very difficult. Your plea of guilty has spared them having to give evidence again at a trial, and has avoided the expense and inconvenience more generally, of a trial. That is of value to the court and to the administration of justice generally, and so you are entitled to a meaningful discount on your sentence.

56I also accept it to some extent as an indication of remorse and acceptance of responsibility, which you have expressed in rather broad terms to Ms Steffens, saying you regret the wrong choices you made, and that you are remorseful for your prior sexual behaviours and your drug-using lifestyle. Whilst in prison you have changed your attitude to such a lifestyle, having engaged in self-development programs including regular Bible study and substance abuse programs.

57The need for general deterrence is a significant part of this sentence, as is specific deterrence and just punishment.

58This leads to consideration of your prospects for rehabilitation. You have been assessed as being at moderate risk of sexual re-offending. Understanding of consent in sexual relationships is a critical part of civilised life, and the courts have a role in disseminating that message. Your limited insight into this may well have been hampered by your condition of Borderline Personality Disorder, which itself had its origins in your early experience of maternal abandonment.

59While that may be the partial explanation for your behaviour, together with drug use, as explained by Ms Steffens, your increased understanding and eventual treatment will likely assist in your rehabilitation. You have already taken some steps in that direction, including regular attendance at meetings of Alcoholics and Narcotics Anonymous, and drug screens, which have all been negative. You have attended workshops addressing self-reflection, and are due to start a program about family violence. You have completed many other programs and have provided certificates from them. You have achieved this as a remand prisoner subject to various restrictions, so there is credit due for this.

60Several members of your family have written thoughtful letters describing your time of offending as an aberration, and that since being in custody you have reverted to the better person you were previously.

61In sentencing you I take into account the matters I have just recounted, and in the context of the need for both general and specific deterrence. Clearly the need for general deterrence is high, given the prevalence of sexual abuse of women and your dearth of comprehension about consent on the one hand, and entitlement on the other hand.  The serious level of your offending calls for harsh punishment, moderated by the mitigating circumstances described.

62Although you appear to have taken responsibility for the offending, you have what your counsel has described as only a developing understanding of the requirement for consent in sexual relationships. These matters are noted by Ms Steffens in her report.[7] Notwithstanding your good progress so far, specific deterrence remains a significant part of this sentencing task.

[7] Report of Courtney Steffens dated 4 October 2024 at [77]

63I sentence you to the following terms of imprisonment.

64For Charge 1, rape. 8 years.

65For Charge 2, sexual assault, 5 years

66For Charge 3, rape, 7 years

67For Charge 4, rape, 7 years.

68The sentence for Charge 1 is the base sentence for purposes of cumulation. I order that two years of each of the sentences for the other charges be served in cumulation upon the base sentence. That results in a total effective sentence of 14 years.

69I order that you serve a minimum period of 10 years before being eligible for parole.

70

If you had pleaded not guilty to these offences I would have sentenced you to

18 years with a non-parole period of 14 years.

71You are sentenced as a serious sexual offender in relation to Charges 3 and 4.

72In exercising my discretion I have determined that you will be placed on the Sex Offenders Register and will have to provide your details to police every year for the rest of your life.

73You have been in pre-sentence detention for 1,183 days, not including today, and I declare that time is to be reckoned as already served. That shall be noted on the court record.

Mr Townsend, I come now to your personal background and circumstances.

74You are a 49-year-old single man, the father of two adult daughters from your early marriage which ended after several years. You also have a six-year-old son from a brief relationship, who lives in Queensland with his maternal grandparents. His mother had serious drug problems and there are ongoing legal proceedings concerning him. You have engaged lawyers hoping to have a role in those proceedings.

75Your own childhood was a positive one, although your primary schooling was disrupted by frequent moves. You completed an apprenticeship and were employed in several different fields until a workplace accident injured your back when you were 21, and you have not been able to work since then.

76The injury was exacerbated by a car accident and led to a laminectomy, with a further injury after that. You pain now has to be managed by your GP with strong painkillers, namely, oxycontin and endone, and it is said to be well-managed.

77You struggled with depression and acute anxiety through your youth and adult life, and from your teenage years you abused drugs and alcohol at significant levels. This was still the case at the time of the offending, but when you were released on bail you made efforts to abstain.

Gravity of offending.

78I have already described the seriousness of this charge, which is Charge 2 on the indictment, a charge of sexual assault. Your complicity in it was by way of your presence in the room, and by filming the sexual assault, and thereby providing encouragement to Mr Martinelli. You also took part in an exchange of text messages with Mr Martinelli before the assault, indicating that you were aware there could be sexual activity at the very least at the meeting between Mr Martinelli and the complainant, but possibly a sexual assault.

79The result of the plan discussed in those messages was that the complainant was rendered unconscious and then sexually assaulted, which places the offending at a high level of seriousness.

80When the offence was committed you were affected by amphetamine, smoking it at the time. You were using drugs daily then, your life being dysfunctional, and your decision-making affected as a consequence.

Mitigating factors

81It follows from this background that your criminal history is dominated by offending generally connected with drug abuse, with little in the way of violence and no previous sexual offending. You have served one short prison sentence in the past.

82You have not offended again since this matter. You have been living with your sister and her family, somewhat isolated but in her words, starting to rebuild your life. She was shocked to learn of the charge, as was your friend and your godson, who have both written to support you. Your friend is a person employed at a professional level, in a position of considerable responsibility, and I place particular weight on his opinion that you are well-motivated to reform.

83You have pleaded guilty after a contested committal, when the charge you were facing, and until recently, was that of rape. As already described the committal hearing was protracted and resulted in pleas of not guilty in March 2023. Negotiations occurred, during which, in July 2023, you offered to plead guilty to sexual assault. This was not accepted until June this year when eventual resolution of both cases took place.

84That plea is valuable as it has spared the complainants from having to give evidence again, this time in front of a jury. I am told it was a very difficult experience for them, in particular the complainant involved in Charge 2. The avoidance of a trial has also saved considerable time and expense for the court and the criminal justice system more generally.

85It is also accepted as an indication of remorse. There are other indications of your rehabilitation and perhaps reasonable prospects for further progress, which moderate somewhat the need for specific deterrence. As for general deterrence, that remains an important part of the sentence I shall impose, as I have already indicated in relation to Mr Martinelli.

86Will you stand please, Mr Townsend.

87I sentence you to the time you have already served, 570 days. Put another way, it is 19 months. I take that into account that those 570 days included COVID times when you were on remand.

88If you had pleaded not guilty I would have sentenced you to 3 years and 9 months, with a non-parole period of 2 years and 6 months.

89I think that completes everything.  There is the need for the sex offender registry notice to be sent to prison, that will be done and Mr Martinelli will be able to sign that and it will be faxed back.

90Can I thank in particular Ms Lee, your instructing solicitor, Ms McNeal who took some trouble to set out the arcane complexities of the sex offender registry.

91MS LEE:  Yes.  It was a phone call this morning that was yes, it took some time but we got there.

92HER HONOUR:  Yes, please thank her for that.  Are there any other matters?

93MR SMITH:  No, Your Honour.

94HER HONOUR:  Thank you.

95MS LEE:  No, Your Honour.

96MR O'HALLORAN:  Apologies, Your Honour.  I might have missed it.  Was there a 6AAA indication for Mr Martinelli.

97HER HONOUR:  Sorry, Mr O'Halloran, I just didn't pick up what you began to say.

98MR O'HALLORAN:  Sorry, Your Honour.  I might not have heard it.  Was there a 6AAA indication for Mr Martinelli.

99HER HONOUR:  For Mr Martinelli, yes I did, yes, yes.  18 years with non-parole of 14 years.

100MR O'HALLORAN:  May it please the court.

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