Director of Public Prosecutions v Mathieson

[2021] VCC 1646

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01459

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN MICHAEL MATHIESON

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	7 October 2021
CASE MAY BE CITED AS:	DPP v Mathieson
MEDIUM NEUTRAL CITATION:	[2021] VCC 1646

REASONS FOR SENTENCE
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Subject:Criminal law – sentence              

Catchwords:              Four charges of rape, one charge of indecent assault and one charge of threat to inflict serious injury (rolled up charge) – early plea – youthful offender – background of childhood deprivation – application of Bugmy principles – personality disorder and subsequent diagnosis of schizophrenia – application of Verdins principles – burden of imprisonment – serious sexual offender – sex offender registration

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Bugmy v. The Queen (2013) 249 CLR 571; R v. Verdins (2007) 16 VR 269; Daylia Brown v. The Queen [2020] VSCA 212

Sentence:                  Total effective sentence of 12 years’ imprisonment, non-parole period of seven years and six months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. Hutton (plea and sentence)	Office of Public Prosecutions Victoria
For the Accused	Mr R. Nathwani (plea) Mr O. Smith (sentence)	Pica Criminal Lawyers

HER HONOUR:

1Justin Mathieson, you have pleaded guilty to sexual offending arising from two separate instances of rape that occurred in February and October 2012.

2In relation to the offending that occurred on 24 February 2012, you have pleaded guilty to one charge of rape contrary to s38(1) of the Crimes Act 1958 (‘the Act’) (charge 1).

3In respect of the offending that occurred on 20 October 2012, you have pleaded guilty to three charges of rape contrary to s 38(1) of the Act (charges 2, 3 and 5), one charge of indecent assault contrary to s 39 of the Act (charge 4) and one charge of making a threat to inflict serious injury contrary to s 21 of the Act (charge 6 – a rolled up charge comprising three threats to inflict serious injury).

4In sentencing you I must have regard to the maximum penalties imposed by Parliament for each of these offences. The offence of rape carries a maximum penalty of 25 years’ imprisonment. Indecent assault carries a maximum penalty of 10 years’ imprisonment and a threat to cause serious injury carries a maximum penalty of 5 years’ imprisonment.

5You were born in December 1988 and were 23 years of age and living in St Kilda at the time of the offending. At the time of the offence, you had one prior matter for intentionally causing injury for which you had been sentenced on 4 August 2008 to three months imprisonment to be served by way of an intensive correction order. You had no prior convictions for sexual offending.

Circumstances of offending

6The circumstances of your offending are detailed in the prosecution plea opening dated 3 March 2021. This represents an agreed account of the events, a summary of which is as follows.

Offending on 24 February 2012

7The Bay Trail is a popular walking trail that can be accessed from the Elster Canal in Elwood.

8At about 8.25pm on Friday, 24 February 2012, Ms Lauren Kelly[1] met with a friend at the Elster Canal to enjoy a walk along the Bay Trail in the direction of Brighton. Ms Kelly, then aged 47, was a resident in the local area. As they began walking along the path, the two friends noticed you walking slowly in front of them. They walked about 4km to the Middle Brighton Baths and then stopped at a local café. After half an hour there, they walked back towards Elwood. They arrived at the canal just before 11pm and chatted a while, before parting ways. Although it was dark, Ms Kelly noticed you walking along the canal towards Barkly Street, Elwood.

[1]A pseudonym

9Ms Kelly continued to make her way along the canal and caught up with you at the Barkly Street pedestrian lights. She passed you and continued to Addison Street, where she turned right. When she was approximately 25 metres from the corner of Addison and Shelley Streets in Elwood, Ms Kelly heard you run up behind her. You then grabbed her from behind. You reached around her shoulders with your right arm across the front of her neck, holding onto her left shoulder. You then pushed her forward. As a result, Ms Kelly fell to her right knee before landing on her back.

10Once Ms Kelly was on her back, you crouched over her and held her down with your right hand on her chest. She attempted to fend you off; putting her hands out in front of her and kicking out at your stomach. In response, you grabbed her left hand and tried to flip her on to her stomach. Bravely, Ms Kelly continued to fight you, while screaming out, ‘Somebody help me’.

11Undeterred, you placed your hand on Ms Kelly’s right buttock and tried to flip her over again. You then pulled her shorts down and, during the struggle, licked her face. You then reached down behind Ms Kelly and inserted your finger in her anus. This is the conduct that forms the basis of Charge 1 – rape.

12Understandably terrified, Ms Kelly screamed louder hoping someone would come out of the nearby apartments. As she continued screaming, you got up and ran towards Shelley Street, turning towards the beach. Ms Kelly then ran to the opposite side of Addison Street, where, seeing a female cyclist, informed her she had just been attacked.

13Several residents from nearby also came to assist Ms Kelly. They walked her home. After speaking with her husband and a friend, Ms  Kelly called police. She provided a description of the offender. She was medically examined at Monash Medical Centre where swabs were taken from her and her clothing. Scratches were noted on her left shoulder and upper back and grazes on her right knee.

14However, it would not be until June 2020 that you were identified as the offender in relation to this incident.

Offending on 20 October 2012

15Chelsea Baker[2] was 32 years old and living in the Elwood area in 2012. On the evening of Saturday 20 October 2012, Ms Baker went out for a walk along the Elwood canal to the Bay Trail, heading towards Brighton.

[2]A pseudonym

16Ms Baker walked until it became dark. When it started to rain, she turned back to head home. She had just sent a text to a friend, and arranged for him to visit later to watch a movie. As she was putting her phone back in her pocket, she noticed you sitting on a seat beside the walking path. She had seen you earlier as she walked towards Brighton.

17At that moment, you ran towards Ms Baker and grabbed her by the upper arms. You then threatened her, saying, ‘Don’t scream or anything or I will stab you, go and get in the bushes’. This is the first incident that forms part of the rolled up charge 6 – threat to inflict serious injury. In fear of being hurt, Ms Baker went into the bushes while you continued to hold her by her arms.

18You walked Ms Baker through some thick scrub to a small clearing. She pleaded with you not to hurt her. You replied that you were ‘really horny’ and ‘just wanted sex’. You said, ‘I’m not going to hurt you, but if you scream or struggle, I will hurt you. I will stab you, I’ve got scissors in my bag’. This is the second incident that forms part of rolled up charge 6 – threat to inflict serious injury.

19You told Ms Baker you would use a condom but had to get to your bag. You had left this on the seat nearby. You grabbed Ms Baker’s mobile phone from her jacket saying you would take this so she would not run away. You took it with you as you went to get your bag.

20Courageously, Ms Baker seized the opportunity to run, making it some 30-40 metres along the walking path before you chased her down. You grabbed her by the arm and told her not to do this again, or you would stab her. This is the third incident that forms part of rolled up charge 6 – threat to inflict serious injury. You then walked Ms Baker back to the same clearing.

21Once there, you stood facing Ms Baker. You put your hands inside her shorts and inserted your fingers inside her vagina. This is the basis of charge 2 – rape. You asked Ms Baker if she had a ‘hot body’ and lifted her top to look at her stomach. You then knelt down, pulled Ms Baker’s shorts to her knees and inserted your tongue in her vagina. This is the basis of charge 3 – rape. As Ms Baker continued to plead with you not to hurt her, you put your hands down her top. This conduct gives rise to charge 4 – indecent assault. You said, ‘Look me in the eyes, I’m not going to hurt you, I just want sex’.

22Once Ms Baker was on her back, you removed her shorts and underwear and knelt between her legs. You pulled your pants and underpants down and then placed a condom on your erect penis. You lay on top of Ms Baker and penetrated her vagina with your penis. This conduct gives rise to charge 5 – rape.

23You kissed her on the lips and repeatedly asked if she liked it. You told her she had a ‘nice cunt’ before telling her you were ‘about to cum’. After you ejaculated you stood up and told Ms Baker to get up off the ground. You told her you would leave first. You checked the ground with your phone torch. Ms Baker asked to leave and you repeated that you would leave first. You then left the area through the scrub.

24Ms Baker then ran along the canal to her home, arriving at 8.35pm. You had taken her mobile phone, so she was unable to call anyone. She had a shower and waited for her friend to arrive. Ms Baker immediately told him she had been attacked and raped at the beach. He encouraged her to call the police. Ms Baker spoke with her sister via Skype who stayed on the line until the police arrived.

25The police collected the clothing Ms Baker wore at the time of the incident. Forensic samples were taken at the Monash Medical Centre and on examination, Ms Baker was found to have multiple scratches to her lower limbs.

Investigation and arrest

26The clothing and forensic samples obtained from both victims were analysed by the Victorian Forensic Science Centre. The analysis revealed a DNA profile which linked both events to the same male offender. At the time, the profile did not match any person on the database and the cases remained unresolved for many years.

27On 12 June 2020 the DNA Management Unit informed police that you had been forensically linked to both incidents. This information led to your arrest on 17 June 2020. You were interviewed by police and provided ‘no comment’ to the allegations, as is your right. You agreed to provide a voluntary DNA sample. This sample was then compared to the DNA samples obtained from the victims and their clothing. It demonstrated extremely strong support for the proposition that you were the contributing source of the DNA detected in those samples.

Gravity of offending and victim impact.

28I turn now to discuss the nature and gravity of your offending.

29The seriousness of the crime of rape is marked by the fact that it carries a maximum period of imprisonment of 25 years. The act of rape is inherently serious, being an act of violence.

30These are particularly serious instances of this crime. Although your offending in February 2012 could be characterised as impulsive and opportunistic, the same could not be said of the second incident in October 2012. During the second incident, after you grabbed Ms Baker, you embarked on a determined and persistent course, including chasing her down after she fled from you. Your offending on this occasion occurred over a longer period, during which time you raped the victim multiple times. The three acts of penetration were each very serious and compounded the criminality involved in your offending against Ms Baker.

31The law does not distinguish between different forms of rape. The first digital rape against the second victim was particularly serious. It occurred immediately after you chased after her down and returned her to a secluded area and threatened to stab her. The digital rape, in these circumstances, set the scene for the two acts of rape that followed.

32That you ignored Ms Baker’s repeated pleas that you not hurt her but persisted with your offending is a significant aggravating feature. That the acts of rape were accompanied by multiple threats to inflict serious injury with a knife makes this a particularly terrifying instance of that offence. The threats facilitated your sexual offending by heightening the victim’s fear. Although you were not actually armed with a weapon when you made these threats, the victim did not know that at the time.

33In relation to the offending against Ms Kelly, the non-consensual digital penetration of her anus was a serious violation of her physical integrity and dignity. You also persisted in the offending against Ms Kelly notwithstanding her considerable efforts to fight you off, while screaming for someone to help her. Fortunately that instance of offending occurred over a relatively brief period, when Ms Kelly’s screams led you to run off in fear of apprehension. However, it was clearly a terrifying ordeal for her.

34In respect of both instances, the offending was accompanied by a degree of force in order to effect the offending. Fortunately, despite the threat of violence directed to Ms Baker, you used no other physical violence towards either victim beyond that inherent in the sexual offending. The fact you used a condom during the act of vaginal penetration meant the victim was not placed at risk of pregnancy or contracting a sexually transmitted disease.

35Your offending was not isolated. You preyed on two separate victims, both alone and unknown to you, between a period of seven months. You had ample time to reflect on the wrongfulness of your conduct after the offending in February 2012 and desist from further offending. Your culpability increased with the subsequent act of offending. It was only after your offending against Ms Baker that it appears you desisted from further confrontational sexual offending of this nature. You do however have a subsequent conviction for sexual assault.

36Your offending has had a devastating impact on both victims. As the victim impact statements both attest, the passage of time since the offending only goes to illustrate the profound, life-changing impact of your crimes on these two victims.

37Ms Kelly elected to read her victim impact statement in open court. Having to relive the events has been traumatising for her, as she reflects on the emotional, physical and mental impact of the offending. She describes the offending as a ‘nightmare’ and says that even though it has been a decade since the offending, the sound of running footsteps continues to instil fear in her. She describes feeling powerless at the time, and says her sense of safety has been forever affected. She expressed her gratitude to the police who conducted the investigation, and acknowledged the sensitivity and compassion displayed by the police who assisted her at the time.

38Ms Baker’s victim impact statement was read to the court. It reveals that your offending has had a profoundly impact on almost every aspect of her life. It undermined her sense of self and compromised her ability to function physically and emotionally. She ceased socialising, and become reclusive; feeling lonely, bored and hopeless. Activities she formerly engaged in to manage her wellbeing, such as running and walking, triggered memories of the attack. She suffers insomnia which impacted on her performance at work and her overall health. She has required medication for depression and anxiety and had experienced suicidal ideation. Her anxiety heightened whenever she was alone with male colleagues. She felt unable to pursue intimate relationships, and as a result is now at the stage of life where she may be unable to have children. For her this is a significant cause of distress. As with Ms Kelly, your crimes destroyed Ms Baker’s sense of safety.

39These were serious examples of a serious offence; with the offending in October 2012 being a particularly grave instance of the crime of rape. It is accepted by your counsel, Mr Nathwani, that the gravity of your offending warrants the imposition of a term of imprisonment. Your moral culpability for your offending is significant, but is also informed by your personal circumstances and your mental health condition at the time of the offending, to which I now turn.

Personal history and circumstances

40Your personal history and circumstances are detailed in the forensic psychiatric report of Dr Rajan Darjee dated 8 April 2021 that was tendered in your plea.

41You were born in Melbourne in December 1988 and are now 32 years old. You have a younger sister, Kaitlyn, with whom you now have little contact, and an older brother, Matthew, to whom you remain close.

42Your early childhood was marked by exposure to alcohol, violence and a dysfunctional family environment. Your father, who worked as a scaffolder, drank heavily. When intoxicated, he was an angry man who was violent towards your mother and could be cruel. Although your father was never violent towards you, you were exposed to his violence and were scared of him. At the age of 40, when you were fourteen, your father passed away from an alcohol-related illness.

43Following your father’s death, your mother then began to abuse alcohol and drugs and was subsequently diagnosed with bipolar disorder. Staff from your secondary school reported that you were missing classes and raised their concern that your mother was unable to look after you and your siblings. As a result, all three children were removed from her care. You were then placed in a number of foster care homes, an experience you report was difficult.

44After being placed in foster care, you had to move to a new secondary school where you struggled to fit in, were quiet and anxious, and found it difficult to make friends. You were increasingly truant and left school altogether in Year 9.

45After dropping out of school, you returned to live with your mother. You began smoking a lot of cannabis and became reclusive, spending most of your time at home. In your late teens, your mother obtained an intervention order against you and accommodation was sourced for you by the housing service, Hanover, in St Kilda. You did not speak to your mother for one year. Living in a flat in St Kilda, you experienced difficulties with your neighbours. You were lonely and began to abuse drugs, which were in ready supply. You then chose to become homeless, living in a tent, until you were admitted to hospital due to your poor mental health in 2019.

46You have only had occasional employment, including stacking alcohol at Flemington Racecourse and bricklaying. You enrolled in a hairdressing course four years ago, completing three of four terms before the school closed down.

47You have never had an intimate partner and struggle to form friendships. Dr Darjee says you have “long standing feelings of inadequacy, fear of rejection [and] thoughts that others think negatively” of you. As a result, you have often felt lonely, rejected and anxious.

48Your subsequent criminal record includes two court appearances for dishonesty and other offences in 2015 and 2018, for which you were placed on adjourned undertakings. Then, on 10 October 2019, you were sentenced for two counts of unlawful assault and one charge of sexual assault by touching of a child under 16 years, for which you were convicted and sentenced to an 18 month community correction order and placed on the sex offender register for a period of 8 years. The circumstances of these offences are set out in Dr Darjee’s report. They involved touching teenage girls when you were on a bus and at an ice rink. On one occasion you touched a young woman on the breast giving rise to the sexual assault charge.

Mental health

49Poor mental health has been a feature of much of your adult life.

50In 2015/16 you sought treatment for anxiety from the St Kilda Clinic and in 2016, the Youth Access Team diagnosed you with social phobia, dysthymia, cannabis dependency and agoraphobia. From 2017, you began to present regularly to the emergency department of the Alfred Hospital with anxiety and ‘paranoia’ in the context of drug misuse, particularly methylamphetamine.

51Dr Darjee’s report outlines a period between 2018-19 where your general practitioner, concerned about your deteriorating mental health sought to refer you, without success, for psychiatric or psychological treatment. Your mother had reported a significant deterioration in your mental state in late 2018 and early 2019, including times where you were rambling incoherently. Your personal care had suffered, you had lost weight and appeared unkempt.

52Eventually you were admitted to Sunshine Hospital under a compulsory treatment order in May 2019 due to your behaviour. At that time you were displaying increasingly paranoid behaviour, believing that people were reading your thoughts, following you and trying to kill you.

53You remained in the Adult Acute Psychiatric ward at Sunshine Hospital between May and July 2019. During that period, the hospital reported that you suffered auditory hallucinations and displayed sexually disinhibited behaviour, especially towards women. It is reported you engaged in physically and sexually inappropriate behaviour, making sexual advances towards female staff and other patients, and spoke about ‘violent sexual fantasies’. You were also threatening and abusive towards staff. Your behaviour required you to be placed in seclusion for periods under close observation.

54During your time as an involuntary patient, you were treated with electroconvulsive therapy (ECT), various anti-psychotic medications, sedatives and mood stabilising medication. At the time of your discharge, you had improved notably.

55You remained in community care from 30 July 2019 to 17 June 2020, being the date on which you were arrested on these matters. Whilst in the community you continued to receive anti-psychotic and anti-depressant medication and ongoing psychological, occupational therapy and substance abuse treatment and counselling. You also received an NDIS package due to you poor cognitive functioning to assist you with activities associated with daily living.

56Following your remand, you have been held in the Denica Unit, a psychiatric unit where you see a psychiatrist and mental health nurse, once a month.

57As stated, you began smoking cannabis heavily after you left school and continued to do so regularly, to reduce your anxiety. You also abused other substances, including amyl nitrate, GHB and ice, all of which you described to Dr Darjee as increasing your sex drive. You ceased taking all drugs following your admission to hospital in May 2019 and have remained abstinent thereafter.

58In respect of this offending, you told Dr Darjee that the offences occurred after you had been ruminating about committing a sexual offence for some time. You had taken amyl nitrate prior to the offending to increase your sexual arousal. Although you told Dr Darjee the offending occurred at the ‘spur of the moment’ you said you had been looking for other women on about five occasions around this time. You told Dr Darjee that after the second incident, you felt ashamed and knew you had done the wrong thing.

59Dr Darjee confirmed a diagnosis of schizophrenia which manifested in approximately 2017, perhaps as early as 2016. Dr Darjee reports that your symptoms responded well to ECT and ongoing anti-psychotic mediation together with ongoing support and monitoring from mental health practitioners. Dr Darjee states you continue to display schizophrenic symptoms including blunt affect and a lack of motivation, which may be mistaken for emotional indifference and a lack of remorse, but are in fact, long-term effects of your schizophrenic illness.

60Dr Darjee concludes that you also suffer from an anxious, avoidant personality disorder and a substance abuse disorder. He states that your long-standing personality traits, including anxiety and awkwardness, low self-esteem and fear of rejection and introversion have been present since childhood and were evident long before you developed schizophrenia. As the schizophrenia did not manifest until 2016/17, Dr Darjee confirms it played no role in your sexual offending in 2012.

61However, Dr Darjee does conclude that your moderate-to-severe personality disorder had a direct nexus with your offending behaviour in 2012. Dr Darjee says this disorder “played a significant role in your offending” and in predisposing you to commit these offences. Dr Darjee explains this conclusion as follows[3]:

To compensate for his longstanding feelings of inadequacy, loneliness, rejection and social anxiety, he is likely to have started to fantasise about sexual encounters with women to make himself feel wanted, potent, attractive and sexually empowered. These fantasies, in his mind, would have involved women loving him rather than being focused on coercion…His high level of sexual interest can also be seen as a way of self-soothing and making himself feel good to deal with his feelings of inadequacy, that developed in childhood and became an ongoing issue into adolescence and adulthood.

[3]Report of Dr Darjee dated 8 April 2021, at [29]

62Dr Darjee says you meet the criteria for a diagnosed compulsive sexual behaviour disorder, reflecting your long-standing hypersexuality. Dr Darjee states that this disorder was active at the time of your offending although it has reduced significantly since being treated in hospital, most likely due to the effect of your medication in reducing your sexual arousal.

63As to the subsequent sexual offending involving sexual touching against teenage girls prior to your hospitalisation in 2019, Dr Darjee attributes this behaviour to the deterioration in your mental health and emerging schizophrenia, leading to offending against victims who were vulnerable to your opportunistic and impulsive, disinhibited offending.

Sentencing considerations

64I turn now to address other relevant sentencing considerations. In written submissions that were expanded upon during your plea hearing, both counsel highlighted matters they submit should be given weight in the sentence I impose.

Guilty plea

65First and significantly is your plea of guilty. It is accepted by the prosecution that you entered your plea at an early stage. It has significant utilitarian benefit. You did so without requiring any evidence to be tested in court. In pleading guilty at this stage, you spared the victims the ordeal of giving evidence in court and the community the time and expense of running a trial. The value of your plea is heightened against a COVID-19 background where an early guilty plea carries even greater weight in mitigation than a similar plea entered in other times[4]. The plea is also indicative of remorse.

[4]Worboyes v The Queen  [2021] VSCA 169, [35]-[39]

66I accept there is also other evidence of remorse. You told Dr Darjee that you were shocked, shamed and remorseful for your actions, particularly after the offending in October 2012. This is supported by the fact that you have not committed sexual offences of a similar character since that date.

67Your guilty plea, in all the circumstances, entitles you to a significant sentencing discount.

Application of Bugmy principles

68In the decision of Bugmy, the High Court explained the relevance of childhood deprivation to a sentencing decision. As the Court stated[5]:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise a person’s capacity to mature and to learn from experience. It is a feature of a person’s make-up and remains relevant to the determination of the appropriate sentence…

[5]Bugmy v the Queen (2013) 249 CLR 571 (Bugmy)

69I accept that the Bugmy principles have application to your case. During the plea hearing, the prosecution conceded these principles apply but submitted the evidence did not establish a “profound disadvantage”. For instance, the prosecution highlighted that you were not subject to physical violence at the hands of your father but witnessed the violence perpetrated against your mother. Ultimately, the prosecution submitted that the Bugmy principles were not eliminated but that it was a question of the extent to which they operated in mitigation of sentence.

70I consider your background of childhood deprivation and neglect, primarily arising from your early exposure to violence, parental alcohol and drug abuse, followed by your mother’s declining mental health, is relevant in mitigation of sentence. Although you were never physically assaulted by your father, during your formative years you were exposed to his alcohol abuse, violence and cruelty. Your mother’s subsequent addictions and declining mental health resulted in you being removed and placed in foster care. Dr Darjee concludes your personality traits of social anxiety, awkwardness and low self-esteem were all present from early childhood.

71l accept that this background of significant disadvantage attracts the Bugmy principles and that your moral culpability for these offences is less than that of an offender whose formative years have not been marred in this way[6]. You are entitled to some moderation in the sentence I impose having regard to these principles.

[6]Bugmy, [40f]

Application of Verdins

72I also accept that the principles in Verdins[7] are engaged based on the expert psychiatric opinion of Dr Darjee. In his detailed report, Dr Darjee concludes that your personality disorder, being an avoidant/anxious personality disorder that was moderate to severe in nature at the time of your offending, was directly related to your offending and in predisposing you to commit these offences. As such, your personality disorder enlivens the principles set out in Verdins and operates to reduce your moral culpability for these crimes[8]. It reduces, but does not eliminate the need for the sentence to deter others from similar offending. It similarly reduces the need for the sentence to act as just punishment for the offending and lessens the need for the sentence to clearly denounce your conduct.

[7]R v Verdins (2007) 16 VR 269

[8]Daylia Brown v the Queen [2020] VSCA 212

Burden of Imprisonment

73I find that your mental health conditions, namely your subsequently diagnosed schizophrenia and your underlying personality disorder, will make your time in custody more onerous. Dr Darjee describes the characteristics associated with these disorders, including an inability to cope, a lack of resilience, difficulties in communication and a vulnerability to exploitation by others[9]. In his opinion, although your mental health is likely to remain stable if monitored and treated in prison, your experience of prison will be more burdensome because of your mental health condition[10]. I accept that these traits associated with your mental illness and personality disorder will make your time in custody more onerous than that experienced by others without these conditions and moderate the sentence I impose accordingly.

[9]Verdins, limb 6

[10]Report of Dr Darjee, [32]

74The COVID-19 pandemic has also had an impact on conditions in custody, including increased periods in confinement to act as a form of quarantine and an absence of in-person family visits and limits on programs and employment. Dr Darjee has assessed that you will be a vulnerable prisoner due to your mental health and added to that, the conditions in custody will make your first time in custody more difficult and isolating. I have taken this additional burden into account in sentencing you.

75Usually in cases such as this, general deterrence, just punishment and denunciation have particular significance in sentencing. However, for the reasons I have explained, these considerations carry less weight in your case having regard to the sentencing principles which operate to reduce your moral culpability for the offending. These principles operate to reduce the weight I attach to these sentencing considerations. However, the nature and gravity of your offending means that the protection of the community continues to be a highly significant sentencing consideration.

Risk of reoffending and prospects of rehabilitation

76You were assessed by Dr Darjee regarding your risk of reoffending against a number of known assessment tools. Dr Darjee concluded that you pose a high long-term risk of sexual reoffending but says that ongoing treatment for your complex mental health and assistance with your psychosocial issues will reduce this risk.

77Dr Darjee states the risk you pose can best be addressed with ongoing mental health treatment and specific psychological intervention, including participation in sex offender treatment and substance misuse/relapse prevention programs. I agree with each of his recommendations in this regard in order to ameliorate the risk of future sexual offending.

78I have considered Dr Darjee’s expert opinion in assessing your prospects of rehabilitation in the context of this serious offending. I have also had regard to your subsequent offending, although I accept it was less serious in nature. Dr Darjee notes that following your discharge from hospital in July 2019 you were able to live in the community, with a high degree of support, without relapsing into substance abuse and without further sexual offending or inappropriate behaviour. Undoubtedly, this level of monitoring and support in the community has mitigated the risk of further sexual offending in this period. Whilst I remain guarded about your prospects of rehabilitation, they will undoubtedly be improved provided you continue to receive and engage in monitoring, treatment and support for your mental health, sex drive and drug abuse issues.

79I accept that imprisonment will have a deterrent effect on you personally, particularly as this is your first time in custody. However, there remains a need for the sentence to operate to deter you from future sexual offending and for the sentence to operate to protect the community. This is so having regard to the seriousness of the two distinct acts of sexual offending against two different victims.

80In sentencing you, I must also take into account current sentencing practices. These are the practices currently applied rather than those at the time of your offending. I have had regard to the cases referred to by the prosecution as a yardstick[11], whilst acknowledging that all cases differ.

[11]

81I have had regard to the sentencing submissions of counsel, and the need to ensure the degree of cumulation, warranted in the case of separate offending against different victims, is balanced against the principle of totality. The three distinct acts of rape committed against Ms Baker, involving three separate kinds of penetration, also warrant some degree of cumulation even though they were part of the one protracted episode of offending.

82Once sentenced to imprisonment on charges 1 and 2, you are to be sentenced as a serious sexual offender on the remaining charges pursuant to s 6B of the Sentencing Act 1991. Pursuant to s 6D, the protection of the community is the principal sentencing purpose for these charges. There is a presumption of cumulation unless the court otherwise orders pursuant to s 6E of the Sentencing Act 1991. The prosecution does not seek, and in the circumstance of this case I do not intend to impose, a disproportionate sentence to achieve the protection of the community.

83I also have regard to the fact that the charge of threatening to inflict serious injury, whilst carrying one maximum penalty of five years, is a rolled up charge reflecting three instances of that offence.

84This is a difficult sentencing exercise. Your serious offending was a terrifying ordeal for the victims that has had a profound and enduring impact on their lives. You preyed on two women, seven months apart, for your own sexual gratification. They were entitled to be safe when walking in a public area set aside for community enjoyment. However, they were not. It is no understatement to describe your offending as every woman’s worst nightmare. The need for community safety to be addressed in the sentence I impose is clear.

85Balanced against this, you had no prior history of sexual offending and as I have discussed, your history of disadvantage and moderate-to-severe personality disorder operate to reduce your moral culpability for what is objectively serious offending. These considerations, in addition to the other matters in mitigation to which I have referred, must be balanced and factored into the sentence I impose.

86Having regard to the sentencing considerations to which I have referred, and guided by the maximum penalty for each offence, I sentence you as follows.

87On charge 1 – rape (being the digital penetration of the first victim’s anus) – you are convicted and sentenced to seven years’ imprisonment.

88On charge 2 – rape (being the digital penetration of the second victim’s vagina) – you are convicted and sentenced to eight years’ imprisonment.

89On charge 3 – rape (being the sexual penetration of the second victim’s vagina with your tongue) you are convicted and sentenced to eight years’ imprisonment.

90On charge 4 – indecent assault (being the act of putting your hands down the second victim’s top) – you are convicted and sentenced to 18 months’ imprisonment.

91On charge 5 – rape (being the penile penetration of the second victim’s vagina) you are convicted and sentenced to eight years’ imprisonment.

92On charge 6 – threats to inflict serious injury (rolled up charge comprising three such offences) – you are convicted and sentenced to 12 months’ imprisonment.

93You are sentenced as a serious sexual offender on charges 3, 4, 5 and 6.

94The sentence of eight years’ imprisonment on charge 5 is the base sentence. I order that 2 years of the sentence imposed on charge 1, 9 months of the sentence imposed on charge 2, 9 months of the sentence imposed on charge 3 and 6 months of the sentence imposed on charge 6 be served cumulatively upon the sentence imposed on charge 5 and upon each other. I order that the 18 months imprisonment imposed on charge 4 be served concurrently with all other sentences. The order for concurrency on charge 4 and the degree of cumulation on charges 2 and 3 have been fixed having regard to the sentencing principle of totality.

95This gives a total effective sentence of 12 years’ imprisonment. I fix period of 7 years, 6 months before you are eligible for release on parole.

96Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to the offences, but been found guilty following a trial, the sentence I would otherwise have imposed would be 16 years imprisonment with a non-parole period of 12 years.

97Pursuant to s 18 of the Sentencing Act 1991, I order that 477 days of pre-sentence detention be reckoned as already served.

98The prosecution applies for you to be registered pursuant to the Sex Offenders Registration Act 2004 (‘the SORA’). The application is not opposed. The test for registration pursuant to s 11(3) of the SORA is whether, taking into account any matter I consider appropriate, I am satisfied that you pose a risk to the sexual safety of one or more persons, or of the community. Having regard to the nature of your offending, and the risk assessment conducted by Dr Darjee, I am satisfied to the requisite standard that this test is met. I grant the application and pursuant to s 34(1)(c), I order that you comply with the reporting obligations of that Act for life.

99I make the disposal order sought by the prosecution, noting it is not opposed.

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