Director of Public Prosecutions v Matovic
[2020] VCC 371
•2 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01076
CR-19-00452
Indictment No. H11950854A.1
H11950854B.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW GEORGE MATOVIC |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 19 February 2020 | |
DATE OF SENTENCE: | 2 April 2020 | |
CASE MAY BE CITED AS: | DPP v Matovic | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 371 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Dickie | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C. Morgan | Stary Norton Halphen |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Matthew Matovic, you have pleaded guilty on Indictment H11950854A.1 to two charges of being a prohibited person possessing or carrying a firearm, the maximum penalty 10 years’ imprisonment; one charge of conduct endangering persons, the maximum penalty 5 years’ imprisonment; two charges of make threat to kill, maximum penalty 10 years’ imprisonment; one charge of causing injury intentionally, maximum penalty 10 years' imprisonment; one charge of common law assault, the maximum penalty 5 years’ imprisonment; one charge of rape, maximum penalty 25 years’ imprisonment and two charges of attempting to pervert the course of justice, 25 years’ imprisonment.
2 You have also pleaded guilty on Indictment No. H11950854B.1 to one charge of possession of identification information, the maximum penalty 3 years’ imprisonment and two charges of being a prohibited person possessing an imitation firearm, the maximum penalty 10 years’ imprisonment. You have also agreed to me hearing and have pleaded guilty to two summary charges, Charge 15 cruelty to an animal, the maximum penalty 12 months' imprisonment and/or 250 penalty units, and Charge 38 possessing a prohibited weapon, 2 years’ imprisonment and/or 240 penalty units. The two summary charges were filed on Court Reference CR-19-00452 as was Indictment H11950854B.1.
3 Your offending on Indictment
H11950854A.1 arises from events which took place between 20 September 2016 and 29 July 2017 (approximately 10 months). Your offending on Indictment H11950854B.1 between 11 August 2015 and 1 June 2017, Summary Offence 15 between 1 October 2016 and
31 December 2016 and Charge 38 between 11 August 2015 and 1 June 2017.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matters having been opened in some detail by the learned prosecutor, consistent with Exhibit A and a chart prepared by the prosecutor (Exhibit C), which includes helpful references to ‘same incident’ offending and number of incidents relevant to each charge.
5 A number of photographs were also tendered (Exhibit D).
6 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are extremely serious and disturbing. Your treatment of Rhona Hall[1] was nothing short of appalling.
[1]A pseudonym.
7 At the time of the offending, you had been in a relationship with Ms Hall for approximately two years. The relationship between you and Ms Hall was marred by violence, control and mutual drug use.
8 From the outset of the relationship you displayed jealous and controlling behaviours towards Ms Hall, however, as Ms Hall was using methamphetamine and you sourced the drug for her, she continued in her relationship with you.
9 I turn to the offences charged on Indictment H11950854A.1.
10 In December 2015 when you were in jail Ms Hall moved in with her sister and got off drugs. You were released in September 2016 and returned to live with Ms Hall in Cannons Creek, at the home of an associate.
11 Your behaviour changed upon your release and Ms Hall noticed you were aggressive towards her, generally appearing paranoid.
12 You showed her a shotgun you had in the house that you kept hidden under the bed. Ms Hall saw you cut down the barrel of the shotgun soon after you showed it to her (Charge 1 – prohibited person possessing unregistered firearm). I was told this was the firearm used in the commission of rape (Charge 7).
13 NOTE INSERTED ON REVISION: Refer to discussion in paragraphs 269-284 of these Sentencing Remarks and that the weapon was that in Charge 8, used in Charge 7 offending.
14 When sentencing on Charges 1 and 8 on Indictment H11950854A.1, I am mindful of Berichon v The Queen, Houssein v The Queen[2] and recently Acciarito v The Queen[3] and the principle of ‘double jeopardy’ in particular referable to Charges 1 and 7 (rape). The firearm being loaded referable to Charge 7 is however an aggravating feature of Charge 7.
[2](2013) 40 VR 490 (‘Berichon’).
[3][2019] VSCA 264 [53-56].
15 Soon after being released from custody, you confronted Ms Hall about being unfaithful to you whilst you were in jail, and without provocation grabbed her by the throat, strangling her until she lost consciousness (Charge 2 – conduct endangering persons).
16 Approximately a week after that incident, you again appeared paranoid and accused Ms Hall of being unfaithful. You retrieved your shotgun, pointed it at her and yelled at her, telling her if she moved from where she was sitting you would “fucking shoot” her. Ms Hall was afraid you would shoot her as she knew that you kept the gun loaded (Charge 3- threat to kill – first particular). This is a rolled-up charge of two occasions.
17 You then approached Ms Hall and struck her about three times to the face, causing her pain. You pointed the shotgun at her forehead, held it between her eyes and struck her over the head with the barrel of the gun, causing her head to split open and blood to run down her face (Charge 4 - intentionally cause injury (rolled-up charge – first particular)).
18 You looked at her head and directed her to shower. Ms Hall wanted to attend hospital but was too afraid to ask you.
19 Around the same time, on another occasion, you were again accusing Ms Hall of infidelity and saying nasty things to her. You told her she was going to learn. You pointed the gun at her, told her to undress, then commenced toying with her while directing her to get you things and sit in places as directed while she was naked. Ms Hall did as she was told over approximately two to three hours. At one point she was directed by you to sit at the bottom of the stairs, with you standing over the balustrade above her, spitting on her naked body for about 10 minutes (Charge 5 – common assault (rolled-up charge – particular 1)).
20 At another stage during this ordeal you directed her to sit naked in the bath. You entered the bathroom and urinated over her face (Charge 5 – common assault (particular 2)).
21 On another occasion you and Ms Hall were arguing. You had possession of a taser and used it on her leg, causing her pain (Charge 5 – common assault (particular 3)).
22 You then directed she bring her dog – a small Jack Russell/Pug to you saying if she did not get the dog you would. Ms Hall did as she was told. You put her dog onto the bed and used the taser on the dog’s ribcage twice (summary offence – Charge 15).
23 You took the dog outside, retrieved your toolbox and told Ms Hall to lie down on the ground. She complied and you applied duct tape to her left leg, as well as to her mouth, so it was taped shut. You retrieved a baseball bat and hit her shin bone with the bat approximately four to five times. Ms Hall was crying. You told her if anyone heard her you would break her leg (Charge 5 – common assault (particular 4)).
24 The duct tape started to peel from Ms Hall’s mouth because of her sweat and tears. You retrieved a red “gag” ball with leather strapping and put it into her mouth. You tried to hit her with the bat again before desisting and removing the duct tape. Ms Hall suffered bruising as a result of the taser and being struck with a baseball bat.
25 In late October 2016, Ms Hall went to dinner with her family for the first time in a long time. When she returned you were outraged, meeting her at the front door with a shotgun in your hand. You demanded to know where Ms Hall had been and who she had been with, as you loaded the gun in front of her.
You held the gun to her forehead, yelling at her, and threatening to shoot her (Charge 3 – threat to kill (particular 2)). That the gun was loaded is an aggravating feature.
26 After this incident Ms Hall decided to leave you and the relationship. You became upset, begged her to stay, telling her you loved her. Ms Hall hoped the violence would stop, so she stayed and continued the relationship.
27 In approximately late October 2016, Ms Hall found out she was pregnant and told you. Your behaviour towards her remained the same, with good days and bad days.
28 Sometime in October 2016, on a “bad” day, you pushed and punched her over trivial things. At one stage Ms Hall was lying on the bed and you approached her and punched her hard in the right eye, causing her eyebrow to split open and bleed. You hit her to the face another three or four times (Charge 4 – intentionally cause injury (particular 2)).
29 Ms Hall did not seek medical attention straight away out of fear, however approximately two days later had an appointment with her Corrections worker who noticed she had two black eyes. Ms Hall lied about how she got the black eyes.
30 Sometime around November 2016, you and Ms Hall were in the bedroom.
You were using a stone to sharpen a black folding knife you kept on a belt clip. You lashed out at her, using the knife to cut her along the front of her right thigh, halfway between her hip and knee. The cut stung and was bleeding through her pants. You laughed at her (Charge 4 – intentionally cause injury (particular 3)).
31 It was around that time you made Ms Hall write lines for answering back to you. She had to write in a notebook “I must not talk back to Masso” over and over, “Masso” being your nickname.
32 In early December, you and Ms Hall were asked to move out of the Cannons Creek address and spent two nights in a Hotel.
33 The first night you stayed there you struck Ms Hall over the head with a bottle, also lit her hair, singing approximately 10 centimetres of her hair (Charge 5 – common assault, hitting her over the head (particular 5)).
34 Ms Hall was bleeding from her scalp, so she went to shower. You entered the bathroom, started saying nasty things to her, punched her to the face about four times, grabbed her hair and pushed her into the shower wall. Ms Hall begged you to stop, saying “Stop, I’m pregnant. Please stop”.
35 You punched her hard to her face, causing her to fall backwards onto the soap dish that was tiled into the wall. Her back hit that dish, causing it to break and cut her back. She fell to the bottom of the shower. You berated her, calling her a “fucking idiot” (Charge 4 – intentionally cause injury (particular 4)).
36 Ms Hall was in pain and crying. You directed her to stand and looked at her back. You acknowledged she needed stitches, but instead retrieved band aids and stuck them on her back. Ms Hall asked if she could go to the doctor and you told her that she “wasn’t going fucking anywhere”.
37 After staying at the Hotel, you and Ms Hall moved in with a friend for a short period of time, during which there were no violent incidents.
38 Just before Christmas 2016, you phoned Ms Hall and told her that she was going to “cop it” when you got home. Fearing for her safety, she phoned her sister, Cecily Davey,[4] and packed her bags and fled the house. She waited down the street, however her sister was not able to get there, so her father arrived, and drove Ms Hall to her sister’s home.
[4]A pseudonym.
39 Ms Hall did not disclose that you had been violent towards her at that time, only telling family you were controlling and preventing her from having contact with her family.
40 Later that night Ms Hall’s mother collected Ms Hall and took her to another family member’s home, that location not known to you. Ms Hall stayed for a few days. After Christmas she answered one of your phone calls. You told her you would be good and would not hurt her anymore. A short time later you picked her up and took her back to the address she’d left when she called her sister Ms Davey.
41 On the drive back Ms Davey called and confronted Ms Hall about returning to you. You made Ms Hall put the phone on speaker and threatened Ms Davey.
42 You put your hand on Ms Hall’s leg, just above the knee, squeezed hard and forced her to tell Ms Davey she had chosen you. You ended the call.
43 Ms Davey reported her concerns to police. On 29 December Ms Davey received a phone call from Ms Hall, asking why she had called the police. Ms Davey heard you yelling and threatening that she (Ms Davey) better get out of the house because you were going to come and kill her (Charge 6 – threat to Kill Cecily Davey).
44 In fear, Ms Davey texted her husband and told him to get the kids and leave the house. That same day, Ms Davey spoke to her older sister, Penelope Mackie,[5] and told her about the threats you had made to her. Ms Mackie contacted Ms Hall on her phone and spoke to you. You were aggressive and told her you had already threatened her sister with burning down her house. You said you were not afraid of police and that if she did not sort her sister out, or if she got the police involved, they would never see Ms Hall again.
[5]A pseudonym.
45 Later that day, Ms Mackie took Ms Hall’s diaries to police, which contained the ‘lines’ Ms Hall had been forced to write and a letter written to you.
46 Police attended the house where you lived with Ms Hall, looking for Ms Hall after her family reported concerns about her safety. You became angry, decided you could no longer live at that address, and moved to another acquaintance home where you stayed in a converted garage.
47 In February 2017, Ms Hall was at that home when you returned to the address with a friend, Cain Parker.[6] At that time, you had been gone for about four to five days. You went into the garage where Ms Hall was, and Mr Parker went into the house. You showed Ms Hall a black-coloured handgun and told her it was a .45 and loaded a cartridge in front of her.
[6]A pseudonym.
48 You pointed the gun at her, directed her to take off her clothes and get onto the bed, which she complied with. You removed your clothes and still holding the gun at her, told her you were going to get Mr Parker and they – he and Mr Parker – would “fuck you at the same time”. Ms Hall said “no” that she did not want to have sex with Mr Parker. You told her it was happening anyway and called out to Mr Parker. Mr Parker did not come out to the garage. Ms Hall did not want to have sex with either of you.
49 You told her to get onto her stomach and you put your penis into her vagina and had sex to her from behind as you held the gun in your left hand. Ms Hall did as she was told as she feared for herself and her unborn child, then 22 weeks I was told, as she had seen you load the gun.
50 Whilst you were having sex with Ms Hall, you put the gun to her head before inserting the gun into her mouth and continuing to have sex with her. Ms Hall tried to move her head back to speak, but the gun muffled the sound (Charge 7 – rolled-up count – rape (particular 1, penis into vagina)).
51 Ms Hall started crying. You told her to shut up, took the gun out of her mouth, stopped having sex with her, and inserted the gun into her vagina from behind, moving it back and forward in her vagina for about 30 seconds (Charge 7 – rape (particular 2, gun in vagina)).
52 You removed the gun from Ms Hall’s vagina and reinserted your penis into her vagina, putting the gun back into her mouth (Charge 7 – rape (particular 3, penis in vagina, second time). You told her you were going to “fuck [her] up the arse” and if she did not let you, you would shoot that “fucking spawn” then shoot her.
53 Ms Hall begged you not to and you told her you were going to continue having sex with her and continued penetrating her vagina with your penis.
54 You then inserted your penis into Ms Hall’s anus, causing her pain, whilst holding onto her shoulders so she was not able to get you off. You continued that penetration for about 10 minutes, with Ms Hall crying the whole time (Charge 7 – rape (particular 4, penis-anus)).
55 When you had finished you pushed Ms Hall off you and told her that you were leaving.
56 That was the last time she saw you.
57 On 1 March 2017, you were involved in a car collision involving police and a handgun belonging to you was found near the scene of the collision (Charge 8 – prohibited person carry a firearm). You were remanded in custody following that incident.
58 Phone calls made by you from custody were obtained by investigators relevant specifically to these allegations before me.
59 During the calls, you made some admissions regarding your conduct towards Ms Hall, also admitting to carrying the handgun, the subject of Charge 8, and of hiding it in a secreted location during the police chase immediately prior to your arrest. Police subsequently found the handgun at the location described by you.
60 During your time in custody, you made several calls to Ms Hall, threatening she and her family members to influence Ms Hall and Ms Davey to withdraw the allegations. Extracts from those calls are contained in Exhibit A (paragraph 57). These calls relate to Charge 9 – attempting to pervert the course of justice and occurred on 6 March 2017, 7 March 2017 (two occasions), 10 March 2017 and 11 March 2017.
61 On 12 April 2017 and 16 July 2017, you called your then new partner, Angelca Ion, and during the calls asked her to speak to a mutual friend, Paula Walters,[7] to have her try to persuade Ms Hall and her family to drop the allegations in an effort to have the charges withdrawn (Charge 10 – attempt to pervert the course of justice).
[7]A pseudonym.
62 Ms Ion contacted Ms Walters by phone daily from 16 July to 22 July and Ms Ion tried to make contact with Ms Hall directly on 22 July. Ms Walters made contact with Ms Hall via Facebook on 29 July 2017.
63 After your arrest by police on 1 March 2017, Ms Hall stayed in contact with you for a short period of time. A few days later she packed up and returned to her family.
64 Ms Hall first reported your offending to police on 15 May 2017.
65 You were interviewed on 10 July 2017 and declined to answer police questions regarding the allegations and to so do was, of course, your right.
66 Regarding your offending on Indictment H11950854A.1, it is difficult to find words to adequately describe the extent, gravity and depravity of it.
67 Your offending was demeaning, degrading, violent and emotionally harmful to Ms Hall.
68 You treated Ms Hall with absolute contempt with no regard for her and for that matter, her unborn child.
69 Your use of weapons to ‘threaten’ Ms Hall is breathtaking.
70 Whilst there will always be, for the purposes of sentencing, worse cases as yet unknown than yours, your offending, in my opinion, is very serious indeed. Your moral culpability is high.
71 I turn to Indictment No H11950854B.1.
72 On 1 June 2017, police executed a search warrant on a storage unit leased by you since August 2015. In that search, a number of items were located, including an SP extendable baton, Summary Charge 38 – possess prohibited weapon without exemption or approval; eighty-one identification documents in the names of forty-four different people (Charge 1 – possession of identification information); a silver imitation shotgun (Charge 2 – prohibited person possess imitation firearm) and a silver imitation handgun (Charge 3 – prohibited person possess imitation firearm).
73 You made admissions during some of the calls you made from prison that your storage unit contained “illegal stuff”.
74
I turn to a chronology of this matter. Your trial was to commence on 27 May 2019. The matter resolved prior to that with you arraigned on 22 May 2019. A contested committal had been held prior to that and Ms Hall was
cross-examined.
75
On 27 May 2019 the plea hearing was adjourned as you wanted to
re-consider your pleas of guilty, i.e. seek to vary your pleas of guilty to ‘not guilty’. I understand that application was either not successful or abandoned by you and the matter returned to me on 19 February 2020 as pleas of guilty as previously arraigned.
76 You have ultimately pleaded guilty to these offences and you are entitled to have that fact taken into account in your favour. I do so. By your pleas of guilty you have saved the time and cost of a trial and in particular Ms Hall has not been required to give evidence at your trial, I note Ms Hall was, however, cross-examined at a contested committal. Your pleas of guilty I accept have utilitarian value.
77 I accept your pleas of guilty reflect some remorse by you, however, I am concerned regarding the extent of that remorse, given the progress of this matter to date through the courts. The report of Mr Jackson also referred to your lack of empathy for Ms Hall.
78 I turn to other sentencing considerations in your case. On 18 April 2005, you were convicted on intentionally threatening serious injury and were sentenced to a term of imprisonment. You therefore fall to be sentenced as a serious offender relevant to Charges 3 and 6. Your counsel, Mr Morgan, agreed such classification applied to you.
79 In so sentencing you on Charges 3 and 6, s.6D Sentencing Act 1991 applies. When determining the length of that sentence I must regard the protection of the community as the principle purpose for which sentence is imposed. Whilst a number of authorities refer to s.6D and s.6E involving sexual offending, the principles stated in those cases referable to the totality principle apply to you also. See R H McL v The Queen,[8] Gordon v The Queen,[9] andMatheas v The Queen.[10]
[8](2000) 203 CLR 452 (‘R H McL’).
[9][2013] VSCA 343.
[10][2017] VSCA 330 (‘Matheas’).
80 I note the prosecution were not seeking a disproportionate sentence and I am of the opinion I can sentence you without the need to impose a disproportionate sentence.
81 Turning to the pre-sentence detention, the prosecutor submitted there are 356 days to serve by way of pre-sentence detention up to and as at your plea hearing on 19 February 2020, for this offending. You had also spent an additional two years in custody undergoing a sentence and, as such, had been in custody for nearly three years.
82 You have admitted a number of prior convictions having appeared in court on a regular basis since 2004. In particular, charges of violence which are relevant to your violent offending before me. I note no charges of sexual offending.
83 On 15 October 2004, you appeared at Melbourne County Court on armed robbery and two charges of assault. On 11 November 2004, at Ringwood Magistrates’ Court, amongst other charges, recklessly cause injury and assault with a weapon.
84
At Sunshine Magistrates’ Court on 18 April 2005, on charges including recklessly cause injury and intentionally threaten serious injury.
You appeared at the Melbourne County Court on 29 September 2005 for breaching the Community Correction Order imposed on 15 October 2004.
On 9 November 2006, you failed to comply with a CBO (as then known) for the offences dealt with on 29 September 2006.
85 On 12 May 2010, you appeared at Sunshine Court on, amongst other charges, unlawful assault. On 5 July 2012, you were before the Sunshine Magistrates’ Court in relation to a number of firearm offences, which are concerning given the charges before me.
86 You were before the Sunshine Magistrates’ Court on 19 August 2013 for offences including intentionally cause injury, possess a controlled weapon without excuse and possess/carry a prohibited weapon without exemption or approval. On 9 April 2014, at Sunshine Magistrates’ Court, amongst other charges, for possess a controlled weapon without excuse.
87 Before the Frankston Magistrates’ Court on 11 March 2015 on charges of unlawful imprisonment, recklessly cause injury and unlawful assault, among other charges.
88 Various sentences have been imposed over the years including terms of imprisonment. You have not been deterred.
89 You have also admitted a number of subsequent convictions relevant to assessment of your rehabilitation prospects.
90 On 20 September 2016, you were dealt with at the Melbourne Magistrates’ Court on charges of intentionally damaging property, possess and control a weapon without excuse, theft and intentionally cause injury, and were sentenced to a term of imprisonment of 3 months. It was noted, at that time, by the Magistrate, you were withdrawing from a drug addiction.
91 You appeared at Dandenong Magistrates’ Court on 15 August 2017 on charges of reckless conduct endangering serious injury, driving in a manner dangerous, unlicensed driving, failing to stop vehicle on police direction, prohibited person possessing a firearm and possess unregistered general category handgun and were sentenced to an aggregate sentence of 2 years’ imprisonment, with a non-parole period of 14 months. You were also that day dealt with for failing to stop a vehicle after a collision, failing an oral fluid test within three hours of driving, failing to ensure passenger wears a seatbelt and possessing cartridge ammunition without a licence and permit. Also with possessing GHB and cannabis.
92 The prosecution referred to your subsequent convictions for violent offending and firearm offences and with terms of imprisonment imposed. These are concerning.
93 The prosecution relied upon those subsequent convictions as relevant to assessing your prospects of rehabilitation and non-parole period. Mr Morgan agreed such were relevant as identified by the prosecution. I agree.
94 Your counsel, Mr Morgan, provided a written Outline of Submissions for your plea hearing.
95 You are 35 years of age at the time of sentence. You had an unstable family life from an early age.
96 You were the victim of physical abuse by your father when you were young, also the victim of sexual abuse by a family friend from age 7.
97 Mr Morgan referred to the reports of Mr Jackson and Ms Mynard, and your significant educational cognitive impairments and other psychological disorders.
98 You began using drugs and alcohol at age 14 which developed into a daily methamphetamine habit in your early adolescence.
99 You have been on a Disability Support Pension since you were 17 years.
100 You attended school until partway through Year 7 and had no real work history.
101 You have sons age 9 and 5. The eldest lives with your mother, who facilitates contact with you in custody.
102 Your early family life was difficult. However, you now described a strong relationship with your mother and father.
103 In mitigation of your sentence Mr Morgan referred to your pleas of guilty.
He conceded that whilst not an early plea and one which had also been attended by some uncertainty given the proposed change of plea, your plea he urged had significant utilitarian benefit and demonstrated a level of remorse and insight into your offending (see also Meissner v The Queen).[11]
[11](1995) 130 ALR 547 [19].
104 Mr Morgan submitted you accepted responsibility for your violence and therefore had some insight and you now accepted your offending relevant to the charge of rape. You had, through your pleas of guilty, he urged, expressed some victim empathy.
105 I agree, your pleas of guilty are important and indicate some remorse for it, although in my opinion, limited remorse and limited insight/empathy.
106 Regarding the gravity of your offending, quite appropriately, Mr Morgan conceded it was a serious example of this offending. He is correct.
He however, urged consideration be given to your then drug problem and paranoia referred to in the reports of Mr Jackson and Ms Mynard to understand the full circumstances of your offending, albeit he conceded not excusing it.
107 Your prior convictions were conceded by Mr Morgan to be ‘substantial’, albeit no priors for sexual offending. I am aware of that.
108 Turning to your moral culpability and general deterrence, reliance was placed upon the reports of Mr Jackson and Ms Mynard, to which I shall shortly refer. Mr Morgan appropriately conceded The Queen v Verdins & Ors[12] principles were not enlivened, however issues raised in those reports could be taken into account, consistent with general sentencing principles. I agree.
[12](2007) 169 A Crim R 581 (‘Verdins’).
109 Addressing your prospects for rehabilitation, Mr Morgan urged your rehabilitation was not hopeless. Specifically, you instructed in your most recent incarceration you had overcome your addiction to drugs. That you were in the process of or had transitioned to Methadone. He urged psychological examinations pointed to some issues which may be connected to your offending that could be explored through prison services in an effort to lower your risk of re-offending after release. I shall turn to recently received materials regarding drug use and your involvement in custody with mental health professionals.
110 Further Mr Morgan urged you had the support of your mother and father, and at least one son who was in contact with you.
111
It was also urged you were relatively young at age 35. I discussed with
Mr Morgan your concerning violent criminal history which is, however, most concerning for someone your age. Mr Morgan urged that with the benefit of longevity you would be able to show you could be rehabilitated after your release from custody, given your still ‘young’ age.
112
Before me was a reference from your mother, Sharon Matovic, dated
5 February 2020 (Exhibit 4). She had discussed this offending with you, and you had expressed remorse for it.
113 Your mother described a number of difficulties in your schooling, your attempted suicide at age 17 and previous diagnosis of psychosis. She noted, as do I, years of drug abuse had not aided you in any way. She had been able to gradually build up a genuine loving relationship between you and your son through visiting prison and exchanging letters. Upon your release you would still be loved and be part of the family.
114 I turn to the Psychological Assessment Report prepared by Alison Mynard, clinical psychologist, 26 June 2017 (somewhat dated), prepared for an earlier court hearing. Details were provided in that report of your background, your father’s drug/violence issues. You moved out of home when you were 17.
115 At school you reported learning difficulties and being diagnosed with an intellectual disability. You worked with your father in a delivery truck from approximately age 13, although your father was also violent to you when you worked with him.
116 You reported having smoked cannabis daily from the age of 15, ceasing that at 16 due to the psychosis it triggered. You then used speed, cocaine, ecstasy and developed a daily habit of amphetamines. You began to use methamphetamines from age 19, saying that drug made you feel very energetic, alert, confident, happy and stronger in yourself.
117 You self-reported having been earlier diagnosed with drug-induced psychosis, an intellectual disability, Schizophrenia, Depression and Dissociative Identity Disorder, which you called “split personality”. You were, you said, hospitalised in a psychiatric ward at 16 or 17, when you tried to commit suicide. You described depressive symptoms for as long as you could remember, such as low mood, low self-esteem and anxiety. Between ages 16 and 17 you often felt paranoid, feeling that people were watching you, following you or out to get you.
118 You said you had several psychological assessments in the past, but not therapy. You had also previously been prescribed Olanzapine.
119 Turning to your criminal offending, you told Ms Mynard that when you were released from custody in 2016 you did not have any support from services, did not have any money, and therefore returned to substance use. You thought, however, you were abstinent from drugs for at least over a year, when on the CISP program.
120 In the opinion of Ms Mynard, you showed poor judgment when substance affected. When not substance affected you realised it was possible you might be paranoid, that ‘it might be in my head', as the symptoms subsided when you were in jail.
121 At the time of her report, you scored within the severe range of depression, with symptoms of feeling sad, being a failure as a father, not enjoying things in life, finding it difficult to find pleasure, feeling guilty and expressing disappointment in yourself. You were agitated and restless. You self-reported moderate levels of anxiety with panic attacks at that assessment. Your Ice use heightened your arousal.
122 While Ms Mynard noted you had not been diagnosed with PTSD in the past, you had many symptoms of that disorder (page 6 of her report).
123
Ms Mynard concluded you did not fit into any diagnostic category of Personality Disorder although you had some antisocial personality traits.
Your antisocial behaviour, she said, occurred in the context of drug addiction. I note Mr Morgan was appropriately not relying upon your drug addiction in mitigation of sentence.
124 In Ms Mynard’s opinion, you showed some traits of Borderline Personality Disorder, such as impulsivity, sudden mood changes, suicidal ideation, temper outbursts and unstable relationships. Those traits occurred in the context of your Ice addiction, rather than being personality features.
125
There was a recent report from Martin Jackson, neuropsychologist, dated
16 August 2019 before me.
126 Mr Jackson obtained Sale Hospital Records regarding your admission to hospital on 27 August 2013 following the assault upon you at Fulham Prison. You were discharged to prison the following day.
127 You reported a history of paranoia since the age of 16 or 17, and a history of PTSD. You said you had been threatened with a gun when you were 19, and regularly had nightmares involving guns and violence since.
128 Regarding your assault upon Ms Hall you said when you were “locked up previously”, she had sex with others and when you got out (of jail) you “got her”, then got locked up again.
129 Regarding your current offending, you said you were dating six to seven girls at the time of it, including Ms Hall and Ms Ion.
130
Mr Jackson noted you had a history of violent behaviour, as do I and you admitted you were a violent person. You acknowledged you hit Ms Hall.
At the time of Mr Jackson’s assessment, you denied the rape allegations.
You have now pleaded guilty to that charge (7).
131 At the time of the offending, you said you were using several drugs, including Ice, Liquid G and cocaine.
132
In the opinion of Mr Jackson, you demonstrated paranoid ideation.
You did not like people staring at you and did not like people trying to read your thoughts. You continued to believe people were watching you, following you and out to get you.
133 A neuropsychological examination was conducted. You did not report symptoms specifically indicative of current depression or anxiety, rather, your report was more of anger towards Ms Hall, as you believed she had made things up in relation to the rape allegations. You said you had always been a violent person and were happy to plead guilty to those charges. Mr Jackson concluded whilst there were no overt signs of depression or anxiety, there were clear signs of poor impulse control, but no signs of low frustration, tolerance or poor anger management.
134 You presented as paranoid, although there were no overt symptoms of psychotic symptoms or significant mood problems per se.
135 Mr Jackson concluded you did not have an intellectual disability. You had a full-scale IQ of 75, in the borderline range.
136 Turning to the report of Ms Mynard, which suggested you had very low to borderline abilities, it was clear, in Mr Jackson’s opinion, that was not the case. In his opinion, the majority of your cognitive performances were in the average range or better.
137 In relation to Ms Mynard’s report, she referred to you being remorseful about your then offending and of expressing empathy for others. Mr Jackson noted no such remorse in this current assessment.
138 Your behavioural difficulties, he said, pervaded your functioning. The majority of your cognitive skills were in the average range or better, however was offset by your very poor impulse control and attention to detail. You were so impulsive you simply acted before thinking, likely in all aspects of your life. This, in my opinion, is troubling when assessing your rehabilitation prospects as you have yet to undertake a course/s of counselling/treatment in relation to these issues. I note you are prepared to do that now, of course.
139 Mr Jackson opined it was highly likely your behavioural and cognitive functioning was more impaired at the time of your offending than currently, given your reported use of Ice, Liquid G and cocaine at the time of this offending. Those drugs would have made you more impulsive, and likely to act on your thoughts without thinking about potential consequences or the effects on others. In his opinion, there was a clear nexus between your behavioural impairment, poor impulse control and lack of attention to detail and offending, I note, as did Mr Jackson, against a background of drug use. It seems from your drug use history and history of violent offending; you are aware your drug use leads to violent offending. I do not however regard drug use as an aggravating feature of your offending when sentencing.
140 Mr Jackson raised concerns regarding your prospects for rehabilitation given your lack of impulse control. I am also concerned. Any attempts to assist you to learn new ways to behave, he opined, were likely to be overridden by your impulsive actions. Further, he concluded you were clearly paranoid and at that time were refusing to take medication or see a psychiatrist in prison i.e. refusing according to Mr Jackson prior to 21 August 2019. I have discussed this with counsel today.
141 Since that report I was told you had undertaken some treatment and were taking medication. Mr Morgan was going to attempt to find out more about that from prison records and further written submissions and prison records were filed yesterday (Exhibit 5 – Additional Submissions and Exhibit 6 – Prison Records).
142 Mr Morgan submitted the documents reveal from 4 February 2020 you began reducing your methadone voluntarily with the aim of coming off it completely.
143 The documents, he submitted, revealed you engaged in your initial psychiatric assessment on 10 July 2019; then refused psychiatric consultation on 21 and 24 August 2019; re-engaging on 28 August 2019 and then on 6 February 2020.
144 Since being at Port Phillip Prison you had, it seems, been unable to be assessed due to lack of clinicians. I discussed the contents of this material with Mr Morgan today.
145 Your counsel, Mr Morgan, was, as I have said, not relying on the principles in Verdins and upon careful analysis of the reports I do not consider any of the six principles in Verdins are enlivened (R v Binse).[13] I also note in that regard your extensive drug use at the time of your offending.
[13][2014] VSC 253.
146
I do, however, take into account, consistent with general sentencing principles, that you will find your time in custody more difficult than a
mentally-able prisoner until you address the issues raised by Mr Jackson.
147 There are four Victim Impact Statements before me. Their statements are eloquent, and it is difficult, in these brief sentencing remarks, to do justice to them. I have, however, read them.
148 Ms Hall in her statement described being diagnosed with depression, anxiety and PTSD, and currently being medicated. Your offending had left her scarred on her back, face and leg. The scars would be with her for life.
149 Fear and paranoia pushed her away from stepping forward in the workforce. Since your offending, her enjoyment of life had practically disappeared.
150 Ms Hall was in fear for herself and her family at all times. She was constantly woken at night with nightmares and had panic attacks.
151 She no longer felt she had the mental capacity to move forward with study.
152 I also received a Victim Impact Statement from Elise Sutton,[14] mother of Rhona Hall. She described that during your offending she worried whether her daughter was safe, whether she was alive. She had difficulty sleeping and had nightmares. She suffered major depression. She had taken medication and seen a counsellor and psychiatrist as a result of your offending.
[14]A pseudonym.
153 She had withdrawn socially from her friends. Your offending caused her relationship with her husband to become strained, as described in her statement.
154 There was a Victim Impact Statement from Penelope Mackie, sister of Rhona Hall, who described the significant effect upon her emotional state as a result of your offending. She was overcome with immense fear, worry and stress, both day and night. She was diagnosed with severe anxiety, social anxiety, Panic Disorder and was medicated for them.
155 She felt she failed as a sister for not being able to save, Ms Hall.
156 She still had triggers of your offending in her everyday life.
157
She had been diagnosed with severe social anxiety and Panic Disorder.
She tended to isolate herself and her children. Ms Mackie felt unable to work or socialise.
158 There was a Victim Impact Statement from Cecily Davey. The stress and worry and constant feeling of fear made her extremely anxious and scared every day for herself and her family.
159 Ms Davey constantly lived in fear that one day the threats made against her would become a reality. As a result of your offending her marriage had suffered, as described within that statement.
160 Ms Davey had emotions of hatred, anger, fear, loss and betrayal every single day and could not trust people.
161 Ms Davey has been for counselling, seen doctors, mediation and hypnosis.
162 A number of authorities have referred to the importance of social rehabilitation and victims of offending, including DPP v Toomey,[15] in which his Honour Vincent JA referred to social rehabilitation citing DPP v DJK[16] (allowing of course for the difference in factual circumstances to the present case).
[15][2006] VSCA 90.
[16][2003] VSCA 109 [17-18].
163 The effects upon a victim are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
164
The prosecution filed a written Outline of Submissions relevant to sentence and addressed the gravity of your offending and aggravating features of it.
Mr Morgan did not take issue with the contents of those submissions.
165 The prosecution submitted Charges 1 and 8 on Indictment 1 and Charges 2 and 3 on Indictment 2 were committed over several months and that you had been prohibited from possessing firearms and imitation firearms because of your criminal record, including prior convictions for unlawful possession of weapons. There was no apparent reason for your possession of firearms or imitation firearms and that firearms were also used by you to commit acts of violence. I again note Berichon, in particular statements by Redlich JA (paragraphs 25-30) and Priest JA (paragraph 51).
166 Regarding Charge 1, you possessed the Beretta for about five months, at one point stored it under your bed. You were also seen to cut down its barrel.
167 Charge 8, related to a .45-calibre semiautomatic handgun, confined to your possession of it on the day you were arrested, when you carried it in your car, and hid it prior to being arrested by police. Your prior and subsequent criminal history in the context of firearms is troubling and relevant, see Berichon.
168 Approximately three months later (Charges 2 and 3 on Indictment H11950854B.1) you were in possession of two imitation firearms.
169 Turning to Summary Charge 38, possession of that prohibited weapon was over an approximately two year period.
170 Turning to Charge 7 on Indictment 1 (rape) that related to four acts of sexual penetration of Ms Hall (rolled up charges and ‘same incident’). The prosecution submitted the rapes were aggravated in the context of ongoing nasty violence and threats. On the day of this offending, there was the use of a loaded gun held to Ms Hall’s head and put in her mouth and with threats to her unborn child.
171 The prosecution also submitted that when you raped Ms Hall, you knew she was aware another man ‘aligned to you’, was, at least initially nearby.
172 You also used a weapon which Ms Hall knew was loaded to penetrate her. I note Exhibit A referred to you loading the cartridge ‘in front’ of Ms Hall and such was confirmed in correspondence subsequent to plea, and I discussed that with counsel today. In addition, there were different types of penetration in Charge 7. Ms Hall, I agree, was vulnerable and pregnant.
173 I note simply to exclude it from consideration the prosecution were not relying on The Queen v Khem[17] and I have disregarded that as an aggravating feature of your offending.
[17](2008) 186 A Crim R 465.
174 Turning to Charges 2, 3, 4, 5 and 6 on Indictment H11950854A.1 and Summary Charge 15 (other offences of violence), that occurred over approximately three months between 20 September 2016 and 31 December 2016.
175 That your conduct relevant to Charge 2, comprised strangling/choking the victim until she briefly lost consciousness.
176 Charge 3 encompassed two threats against Ms Hall. Each made while you held a firearm, which the victim understood to be loaded (an aggravating feature) and in the context of an earlier act of physical violence.
177 Charge 6 was directed towards Ms Davey in response to her expressing concern over Ms Hall’s safety. You made the threats knowing she had contacted police. You were not deterred by that. Your offending, the prosecution said, was brazen enough to later repeat to another that you had made the threats. The threats were serious enough for Ms Davey to take action to try and protect her safety and that of her family.
178 Causing injury charge (Charge 4) encompassed injuries inflicted by you on Ms Hall in four separate incidents. Each injury was unprovoked, the prosecution submitted, and involved acts of degradation and humiliation. The victim was vulnerable, and weapons were used.
179 Turning to Charge 5, common law assault (five separate assaults committed in three incidents). Three assaults involve weapons; a knife, a taser and a baseball bat. The assaults were in the context of other acts by you to Ms Hall that were controlling, degrading and humiliating.
180 The assault on Ms Hall’s dog (Summary Charge 15) was committed in between assaults on her. The prosecution urged such showed your preparedness to control and abuse Ms Hall and to abuse your power. I agree.
181 Turning to Charges 9 and 10 on Indictment H11950854A.1 (attempts to pervert the course of justice), Charge 9 spanned approximately six days and involved you repeatedly threatening Ms Hall to persuade her sister to withdraw her statement or complaint to police.
182 You repeated that offending four months’ later over a two week period (Charge 10), when you tried to encourage your new partner Ms Ion to speak with a mutual friend to try and persuade Ms Hall and her family to drop the allegations. Action was then taken by those engaged by you.
183 Turning to Charge 1 on Indictment H11950854B.1 you possessed forty-four different identification documents over more than nine months. It was not known why the documents were possessed, but the prosecution urged they were not possessed for any lawful purpose and were capable of being used for fraudulent or other purposes.
184 I note when sentencing, Charges 3, 4, 5, and 7 are ‘rolled up charges’ and as such The Queen v Jones[18] applies.
[18][2004] VSCA 68.
185 Turning to the impact of the victims of your offending, the prosecution submitted each of your victims attested to the far-reaching adverse impact of your acts upon them. That is apparent.
186
Addressing your pleas of guilty and remorse. You pleaded guilty to amended charges on 20 May 2019, more than two years after your arrest on 1 March 2017 and shortly before your trial was to start on 27 May 2019.
The prosecution urged yours was a very late acknowledgement of guilt and followed cross-examination of Ms Hall at a committal hearing on 21 May 2018.
I agree. While you had expressed remorse to others for some of your offending, you had not expressed remorse for other offending.
187
The prosecution submitted, your prospects of rehabilitation were very poor given your repeated serious offending and your prior and subsequent relevant criminal history. Further, from the material filed before the Court, in particular, from Ms Mynard and Mr Jackson, the prosecution said you were resistant at that time to participating in programs and engaging in psychological or psychiatric assistance. You also had very little insight into this offending.
I agree.
188 The prosecution also referred to the opportunities you had in the past through various court dispositions to engage in programs to assist your rehabilitation, however you had not participated or at least not learned. The prosecution also raised concerns your offending before me was an escalation from that previously dealt with by the courts. That appears to be so.
189 I was also referred by the prosecutor to Bolton v The Queen[19] and sentences imposed following trial. Your offending, Mr Dickie submitted, had a number of aggravating features which elevated your offence level.
[19][2019] VSCA 21.
190 I was also referred to Forbes (a Pseudonym) v The Queen,[20] referable to general deterrence in a domestic-partner context.
[20][2018] VSCA 341 [42].
191 As I discussed with counsel, it is difficult comparing cases as facts vary enormously case to case, as do all factors in mitigation of sentence and personal to an offender. Of assistance to me are the often stated principles applicable to offending such as yours.
192 Turning to your mental health and moral culpability, the prosecution submitted the two reports were equivocal on the impact and source of any cognitive issues and your drug abuse. The prosecution submitted, and I agree, there was insufficient evidence of any mental-health issues contributing to your offending. In my opinion your culpability for this offending is very high and further, your mental-health issues do not warrant reduction of general deterrence and/or moral culpability.
193 The prosecution submitted general deterrence and specific deterrence were important sentencing considerations and referred to Marrah v The Queen.[21] This type of offending was often perpetrated by men who respond to difficulties within a relationship by possessiveness and violent rage. Such behaviour was unacceptable. I agree.
[21][2014] VSCA 119.
194 The prosecution submitted the sentences imposed must convey an unmistakable message that male partners have no right to subject their female partners to threats or violence. Sentences must be of such an order as to strongly denounce violence within a domestic relationship. I agree.
195 Regarding your rehabilitation prospects, I have real concerns. Your prospects are, without addressing your drug and other issues, at best, guarded. When sentencing I must however seek to maximise your chances of rehabilitation as they may be.
196 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must take into account the need for general deterrence, which is of particular importance in a case such as this, which involves violent offending in a domestic relationship. As I have said, violence towards women is unacceptable. Being a drug user is no excuse.
197 The courts have repeatedly referred to violence against women as unacceptable.
198 In R v Hosseiniamraei,[22] Hume JA stated (allowing of course for the different facts in that case):
'The Courts must consistently denounce crimes of serious violence such as this in no uncertain terms. Those who feel that they are entitled to take advantage of a position of power and dominance in an intimate relationship must know that violence fuelled by anger, jealousy, feelings of being dishonoured, revenge or the like will be severely punished.'
[22][2016] NSWSC 1181 [58].
199 In Kalala v The Queen[23] (again allowing for factual differences), the Court referred to the findings of the 2016 Royal Commission into family violence.
'This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations' (Kalala [59]).
[23](2017) 269 A Crim R 1 (‘Kalala’).
200 Further,
'In Filizv The Queen,[24] the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.' (Kalala [59]).
[24][2014] VSCA 212.
201 Further,
'In Pasinis,[25] Neave JA and Kyrou AJA said that offences committed in the circumstances of family violence warranted lengthy terms of imprisonment:
General deterrence is of fundamental importance in cases of domestic violence … The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[26]
Their Honours further observed that "the criminal law now gives greater recognition to the devastating effects of family violence" and noted that the ‘effects of family violence are now well documented’ and are ‘not confined to physical injury."'[27]
[25][2014] VSCA 97.
[26]Ibid [57].
[27]Ibid [53-54].
202 The Court also noted:
'Unsurprisingly, counsel for the applicant did not suggest that their client’s moral culpability for his deliberate criminal conduct was in any way reduced by the perception of infidelity which actuated the offence. In our view, the position is quite to the contrary. The applicant’s motivation — to have NR killed as punishment for perceived infidelity — is expressive of the very worst of male attitudes towards women. (The applicant’s counsel conceded — properly, in our view — that this was an apt characterisation of his conduct.) It follows that this offending must be viewed as involving moral culpability at the highest level.'[28]
[28]Kalala [62].
203 In Kalala the Court referred to sentencing law having long recognized the prevalence of violence in (or after) domestic relationships and the importance of general deterrence in such circumstances (paragraph 63).
204 I note that similarly in your case, whilst aware the actual charges against you are very different, the motivation for at least some of your offending was your perception Ms Hall was ‘cheating’ on you, apparently however being acceptable for you to ‘cheat’ on her, described by Mr Jackson as ‘double standard’ (page 18 of his report).
205 In DPP v Schneider[29] Judge Trapnell of this Court stated:
“As the Victorian Royal Commission into Family Violence observed:
Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities.”[30]
[29][2018] VCC 1278.
[30]Victoria, Royal Commission into Family Violence: Summary and Recommendations (2016) 1.
206 In DPP v Smeaton[31] Dodds-Streeton JA observed that:
“Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil.”[32]
[31] [2007] VSCA 256 (‘Smeaton’)
[32]Ibid [21].
207 In Saxton v The Queen[33] the court endorsed Kalala and referring to the “scourge of domestic violence in the community” (paragraph 29 – Saxton).
[33][2017] VSCA 357 (‘Saxton’).
208 There is also the need for specific deterrence when sentencing you, given the repeated nature of your offending before me over a significant period of time, i.e. not a ‘one-off’ occasion. Also, your extensive and relevant criminal history in particular referable to violence. I again note no prior sexual offending.
209 I must also consider the need to protect the community from you and that concerns me given that to date you have not undertaken courses to address your mental-health problems, or at least have not satisfactorily addressed your mental-health problems. Hopefully in a prison environment you may. You are in a prison environment where, while I accept there may be drugs available, such are not as available as in the wider community. You will be tested in that regard when you eventually return to the community. You also need to address your concerning attitude to women.
210 I am also called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
211 The magnitude of your offending demands a sentence of some substance.
212
In sentencing you, I take into account the principles of totality, as referred to in these sentencing remarks, including s.6D/E Sentencing Act 1991, also the “one incident” rule where applicable ‘rolled up charges’ (see prosecution chart) and proportionality. I also note you have spent two years in custody over and beyond the pre-sentence detention for these offences before me.
By necessity the orders for cumulation are, in my opinion, somewhat compressed.
213 I sentence you as follows. On Indictment No. H11950854A.1, you are sentenced as follows.
214 On Charge 1, convicted and sentenced to 2 years’ 6 months imprisonment.
215 One Charge 2, convicted and sentenced to 18 months’ imprisonment.
216 On Charge 3, convicted and sentenced to 3 years’ imprisonment.
217 On Charge 4, convicted and sentenced to 4 years’ imprisonment.
218 On Charge 5, convicted and sentenced to 2 years’ 6 months’ imprisonment.
219 On Charge 6, convicted and sentenced to 18 months’ imprisonment.
220 On Charge 7, convicted and sentenced to 12 years’ imprisonment.
221 On Charge 8, convicted and sentenced to 14 months’ imprisonment.
222 On Charge 9, convicted and sentenced to 18 months’ imprisonment.
223 On Charge 10, convicted and sentenced to 10 months’ imprisonment.
224 I direct the following in relation to cumulation and concurrency on Indictment H11950854A.1.
225 I direct that Charge 7 is the base sentence.
226 I direct that 7 months of Charge 1 be served cumulatively upon Charge 7.
227 I direct that 8 months of Charge 2 be served cumulatively upon Charge 7.
228 I direct that 2 years of Charge 3 be served concurrently and 12 months cumulatively upon Charge 7.
229 I direct that 2 years of Charge 4 be served cumulatively upon Charge 7.
230 I direct that 14 months of Charge 5 be served cumulatively upon Charge 7.
231 I direct that 8 months of Charge 6 be served concurrently and 10 months cumulatively upon Charge 7.
232 I direct that 5 months of Charge 8 be served cumulatively upon Charge 7.
233 I direct that 8 months of Charge 9 be served cumulatively upon Charge 7.
234 I direct that 5 months of Charge 10 be served cumulatively upon Charge 7.
235 This results in a total sentence of 19 years 9 months' imprisonment on Indictment H11950854A.1.
236 I turn to Indictment No. H11950854B.1, and sentence you as follows:
237 On Charge 1, you are convicted and sentenced to 10 months’ imprisonment.
238 On Charge 2, you are convicted and sentenced to 8 months’ imprisonment.
239 On Charge 3, you are convicted and sentenced to 8 months’ imprisonment.
240 I turn to the Summary Charges.
241 On Summary Charge 15, you are convicted and sentenced to 2 months’ imprisonment.
242 On Summary Charge 38, you are convicted and sentenced to 2 months’ imprisonment.
243 I direct that Charge 1 on Indictment H11950854B.1 is the base sentence.
244 I direct that 4 months of Charge 2 be served cumulatively upon Charge 1.
245 I direct that 4 months of Charge 3 be served cumulatively upon Charge 1.
246 I direct that 1 month of Summary Charge 15 and 1 month of Summary Charge 38 be served cumulatively upon each other and upon Charge 1 on Indictment H11950854B.1.
247 That results in a sentence of 20 months’ imprisonment.
248 Turning to the Orders for cumulation. I direct that 9 months on Indictment No. H11950854B.1 be served cumulatively upon the total sentence on Indictment No. H11950854A.1.
249 For clarity, the orders for cumulation are upon each other and upon the sentence imposed on Indictment No. H11950854A.1.
250 That results in a total effective sentence of 20 years 6 months' imprisonment and I set a global non-parole period of 16 years before you are eligible for parole.
251 In setting the non-parole I note R v VZ.[34]
[34](1998) 7 VR 693 [15, 18].
252 Pursuant to s.18(4) of the Sentencing Act 1991, I declare you have spent 398 days in custody, up to and including 1 April 2020, by way of pre-sentence detention and I direct this be entered into the records of the Court.
253 Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of all of them, I would have sentenced you to a term of imprisonment of 26 years, with a non-parole period of 22 years.
254 The prosecution made application for a Forfeiture/Disposal Order. This was not opposed, and I make the Order in the terms sought.
255 I direct that it be entered into the records of the Court, I have sentenced you as serious violent offender on Charges 3 and 6 on Indictment H11950854A.1.
256
Any other orders? Before I ask that question again, does anyone want help with me repeating the figures? I am not asking if you agree with the figures,
I am just asking would you like help? Does anything need to be repeated to make it clear? Mr Dickie, have you got the maths?
257 MR DICKIE: I am just adding it up, Your Honour, but if Your Honour could just confirm the head sentence for Indictment A1.
258 HER HONOUR: Just give me a second, I have got to find it.
259 MR DICKIE: Thank you.
260 HER HONOUR: Hang on, I will just find it. 19, 9 months.
261 MR DICKIE: 9 months, yes, thank you, Your Honour.
262 HER HONOUR: All right, so I will just give you both a minute to work through the figures. How are you going? Are you still going? I will wait. Let me know when you are ready, I cannot tell from looking at you.
263 MR DICKIE: Yes, Your Honour, that seems to tally up.
264 HER HONOUR: Thank you. That is what you have got. I just want to know if you have got the figures. How did you go, Mr Morgan? Still going?
265 MR MORGAN: No, no.
266 HER HONOUR: It adds up?
267 MR MORGAN: Yes, Your Honour.
268 HER HONOUR: Great. That is all I wanted to know. Now, were there any other orders apart from the disposal forfeiture? There is no SORA application, I understand that. Anything else?
269 MR DICKIE: Just one factual clarification, Your Honour, and it is this.
270 HER HONOUR: Yes.
271 MR DICKIE: Your Honour did refer to the rape involving the firearm.
272 HER HONOUR: Yes.
273 MR DICKIE: And Your Honour, that involved the handgun, I am not sure if I heard Your Honour refer to the Beretta shotgun, but it could have just been me. Your Honour was very fast. But certainly, that related to the handgun.
274 HER HONOUR: Is that related to any particular charge?
275 MR DICKIE: Well the rape charge, Your Honour, that is Charge 7.
276 HER HONOUR: Yes, I got that. With the gun. I thought we clarified that at the time. Which weapon was that referable to?
277 MR DICKIE: To the handgun that was subsequently seized, found at the scene of the collision.
278 HER HONOUR: All right. Well I did say – so that would be, I will make sure that that is noted. It was the gun found by the police subsequently, not the one that was referred to in Charge 1 I think it is. I will have to find the chart. Hold on a minute.
279 MR DICKIE: Yes, that is right. Charge 1, Your Honour, and Your Honour will recall that although - - -
280 HER HONOUR: So just for clarity, Charge 1, that Beretta is not relevant to Charge 7.
281 MR DICKIE: Yes, that is correct, Your Honour, yes.
282 HER HONOUR: Charge 7 is the Charge 8, is that right?
283 MR DICKIE: That is right, and Your Honour will recall that Charge 8 is confined to one day but clearly there was possession of it on that earlier date.
284 HER HONOUR: Correct. Yes, got it.
285 MR DICKIE: Yes, thank you, Your Honour. That was the only matter I had.
286 HER HONOUR: All right. Well I have noted that. So it is the presence of one of those two weapons and that it was loaded, so that is correct, is it not?
287 MR DICKIE: Yes, Your Honour.
288 HER HONOUR: Got that. All right. Yes, anything further?
289 MR MORGAN: No, Your Honour.
290 HER HONOUR: No, all right. Well thank you both. We will disconnect the link, thank you very much.
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