Director of Public Prosecutions v Miller (a pseudonym)
[2023] VCC 2364
•13 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GABRIEL MILLER (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2023 | |
DATE OF SENTENCE: | 13 December 2023 | |
CASE MAY BE CITED AS: | DPP v Miller (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2364 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Guilty verdict - rape - common law assault - threat to kill - dysregulated behaviour - intimate partner violence - family violence context - controlling behaviour - autism spectrum disorder - ADHD - standard sentence offence - burden of imprisonment.
Cases Cited:DPP v Reynolds [2022] VSCA 263; DPP v Reynolds [2022] VSCA 263; R v Verdins & Ors [2007] VSCA 102; Clarke v The Queen [2022] VSCA 89.
Sentence: Total effective sentence of 6 years and 8 months. Non parole period of 4 years and 4 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P. Kounnas | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Gabriel Miller[1], on 11 August 2023, after a 10-day jury trial on Indictment M12146090.1 you were found guilty by a majority verdict of Charge 6 of common law assault and guilty by unanimous verdict of Charge 9 of common law assault, Charge 10 of rape and Charge 12 of threat to kill. You were found not guilty by majority verdict of Charge 1 and not guilty by unanimous verdict in respect of Charges 2, 3, 4, 5, 7, 8 and 11.
[1] A pseudonym.
2The maximum penalty for rape is 25 years' imprisonment; for common law assault 5 years imprisonment; and for threat to kill 10 years' imprisonment.
3The charges of which you have been found guilty arose out of your relationship with the main complainant in this matter, Ms Allison Simpson.[2]
[2] A pseudonym.
4You and Ms Simpson commenced your relationship sometime in 2017. In May 2017, you moved in together at a Unit in Pascoe Vale. Your son Domenic[3] was born in June 2017.
[3] A pseudonym.
5The evidence relating to the charges of which the jury found you guilty came from Ms Simpson. I accept the following matters from Ms Simpson’s evidence beyond reasonable doubt in respect of the events that took place on 6 July 2020.[4] In my view these facts are consistent with the verdicts of the jury. I have taken considerable care not to punish you for any of the offences of which you were acquitted given the substantial evidence of the relationship that I heard during the trial.
[4] Transcript of trial proceedings dated 2 August 2023 ("T").
6On 6 July 2020, which was during one of the COVID-19 lockdowns in that year, you became frustrated with Domenic, and you started yelling at him and swearing. Domenic was three years old at that time. You got into an argument with Ms Simpson when she objected to your behaviour. Domenic, upset by the argument, hid under your bed. You pulled him from under the bed and held him upside down by his legs. He was crying. Ms Simpson said sorry to you to placate you. You put Domenic down. He ran out of the bedroom and went somewhere into the loungeroom. That is the basis of Charge 6 of common law assault which relates to holding Domenic upside down by his legs.
7At this point, you were in the bedroom and so was Ms Simpson. She was sitting on the bed, you were standing. You were in between the door and the bed. You were screaming at her with your face close to hers. She averted her head, and she pushed your face away. You then jumped on top of her and held her arms down with force. She gave evidence that you were using your arms to push her down into the bed. Your fingers were digging into her arm. She was saying to you 'Get off me, don't touch me'. She said she was on her side, and she was trying to push you off her, trying to kick you with her legs.[5] The basis of Charge 9 of common law assault is you grabbing her with your arms pushing her down onto the bed and digging your fingers into her arm. She sustained bruising to her arm as a result of this assault.
[5] T 100, Line ("L") 9-10, 13-17.
8Eventually, after Ms Simpson told you to stop and to get off her you stood up and said to her, 'You need to show me that you still love me, tell me that you still love me. You’re not leaving until we have a baby'. You then said, 'I'm coming back in five minutes and we're going to have sex'. She said, 'if that's what I've got to do'.[6] She sat there frozen, and you walked out. She lay on the bed crying.
[6] T 105, L 3-5 and 8-11.
9When you came back into the room sometime later you lifted her top. You got onto the bed. She said, 'I don’t want to do this'. You put your penis in her vagina. She was crying loudly. She kept saying to you, 'I don't want to do this'. You said, 'Why are you crying?' and she responded, 'I don't want to be here, I don't want to do this'. In her evidence she said she did not say 'stop' or 'get off me' because she was scared. She was scared because she did not know what was going to happen if she said no. She said she just let it happen.[7]
[7] T 105, L 15-19 and 22-24.
10She was not able to say how long the penetration took, but it felt like a long time to her. She accepted it may not have been that long in time.
11In the end, you ejaculated in her vagina and then you got off the bed. She ran straight to the shower. She said in her evidence that she 'tried to get it out of me because I did not want to get pregnant, I didn't want to get trapped there any longer'. She said she stayed in the shower for a long time. Eventually you came into the shower and asked her why she was still crying.[8]
[8] T 106, L 2-10.
12When this took place, Domenic was in the house somewhere.
13Ms Simpson said the incident made her feel worthless, like everything had been taken away from her and she could not keep her own body safe anymore.
14Sometime that afternoon, she messaged her friend, Megan[9] and sent her photographs of the bruising on her arm. In the text, Ms Simpson said to Megan that you had forced her to have sex with you and she was very scared she would become pregnant. She said she did not want to be in the relationship anymore. Megan replied that what she was describing was rape.[10]
[9] A pseudonym.
[10] T 107, L 12-17 and 20-21.
15Some nine days later on15 July 2020, you and Ms Simpson were together at home. She was intending to end the relationship with you and seek an intervention order against you. She activated an audio recording on her mobile telephone. She told you that she wanted to leave. The audio recording was played to the jury. I will read from the transcript of that recording. You said:
A: Look me I the eyes and say, “I promise” Cause I’ll kill your family ---
C: I promise.
A: …look me in the eye and say “I promise” And I’ll kill your dad if you lie to me.
16It is that threat with respect to your father that is the basis of Charge 12 of threat to kill but there was more in the call. After you said that to her, the complainant said:
C: I promise.
A: Good, you’re…I’ll fuckin kill your whole fuckin family. And you give me another chance and your whole fucking family’s dead. I know where they fuckin live.
C: Why do you have to be so evil?
A: I wanna fix my relationship with you so if you go out with another guy,
I swear on my mum’s life---
C: I don’t wanna be with another guy, I just---
A: I wanna fix it.
C: …want a break.
A: Yeah, yeah I’ll give you a break, but if you ever see another guy ever in your life, no matter even it’s for one hour or one – or one year, I will come after your family, your sisters, you and Domenic.
C: How could you do that to your own kid?
A: I don’t care…you were – you were…dad – fuckin…I’ll come after you.
So – so tell me now, are you giving me a chance or not?
C: Yes.
A: If you’re not giving me a chance I’ll fuckin come after your family.
C: I’ll give you a chance.
A: I only want a chance if you wanna give me it. If you don’t wanna give me a chance, tell me and I’ll come after your family.[11][11] Depositions Appendix 1: Audio recording Transcript 69-70.
17So that is the audio recording. My reading of that does not quite capture the anger that was apparent on listening to the recording.
18On 21 August 2020, you and Ms Simpson had another argument about her contacting an ex-boyfriend. Soon after, she applied for an intervention order against you which marked the end of this relationship.
19You ran a trial in this case. You are not to be punished for running a trial, that is your right, but you cannot rely on the considerable mitigatory benefits that flow from a plea of guilty particularly in a case like this.
Victim Impact Statement
20Ms Simpson made a victim impact statement. In that statement she talks about the failure of the relationship with you.
21She says that your offending has affected her sleep and that she wakes up every hour or two each night. She has nightmares of being assaulted by you in her bed and she wakes up feeling frantic and anxious. She has engaged in over-eating as a form of escape and takes medication for binge eating. After the rape she had suicidal thoughts.
22She no longer trusts her romantic partners. She says you have stolen her dream of building a safe and loving family with someone who would protect her from harm. She grieves for the life she expected to have. She does not believe she will ever open up her life to someone else.
23She is unable to process social media or movies dealing with domestic violence. She suffers from panic attacks.
24The criminal justice process was very difficult for her. She said this: 'Every time I tried to move on from what you did to me, I had to relive it all over again'. In the lead up to the trial she felt shame, and she could not tell her colleagues at work about what she had ahead of her. She says it was difficult to return to her normal life after giving evidence at the trial.
25She said that she did not deserve what you did to her, it was not her fault and writing her victim impact statement was the 'strongest thing she had ever done'.
26In her victim impact statement, Ms Simpson does refer in passing to the impacts on your son, Domenic and how he now treats her, and I have taken those matters into account.
27A second victim impact statement was provided on behalf of Domenic. Ms Simpson wrote that statement adopting Domenic’s voice. I have not placed any weight on the statement for several reasons. Firstly, you were acquitted of the other offences against Domenic and all of the earlier offences against Ms Simpson. It is in the circumstances difficult to attribute any of the impacts on Domenic outlined in that statement to the charges of which you were found guilty. Further, given the form of the statement, in the absence of other supporting material, it is not possible for me to separate the actual impact on Domenic from the impacts that Ms Simpson believes Domenic to have suffered. That said, I do not discount that the circumstances and the aftermath of this offending has had an impact on Domenic.
28The impact of your offending on Ms Simpson has clearly been very substantial and is likely to be enduring as one would expect given its seriousness. The significant impact of rape on the victim needs to be given proper weight in sentencing; it cannot be undervalued.
Personal circumstances
29I turn to your personal circumstances before I return to the gravity of the offences in this case.
30You are now 29 years old. You were approximately 26 years old at the time the offences were committed. You were born in Tasmania and then raised in Brighton and Caulfield. Your parents separated when you were six years old, and you lived with your mother in Seaford. You have one younger sister. I was told that you did not have regular contact with your father when you were growing up although you have a good relationship with him now. You did not have a good relationship with your stepfather. You have a close relationship with your mother.
31You were bullied at school, and you were not academic. You completed Year 11, but you were not able to finish Year 12.
32You worked at Safeway for several years and then you worked in your father’s chicken shop. You worked in metal fabrication for some time before starting in another of your father’s businesses.
33You have a history of using recreational drugs from the age of 19. You have used cannabis and methylamphetamine regularly. You say you use methylamphetamine to manage symptoms of your ADHD but it seems more significant than that. Your use of cannabis has been ongoing.
34Two psychological reports from Dr Aaron Cunningham were relied on, a report dated 23 April 2021 and a brief recent report dated 17 October 2023. In 2021, Dr Cunningham assessed you as having a low IQ, in the bottom four per cent of your age group. He also found that you meet the criteria in the DSM5 for autism spectrum disorder. He described you as having persistent deficits in social communication and social interaction across multiple contexts. You have struggled to source and maintain relationships with your peers, and he said that you largely avoided social interaction. He said that you struggle to understand the thoughts and feelings of others and you have a largely egocentric world view. That much is apparent from the offences of which you have been convicted. He also said you have restricted and repetitive patterns of behaviour and become frustrated when the timing of your routines are not adhered to. You can become obsessively focussed on detail rather than 'the bigger picture'. Dr Cunningham says that you reported these impairments from primary school age. He says in his report that your symptoms cause clinically significant impairment in social, occupational and other areas of functioning.
35Your counsel, Mr Kounnas, informed me that in more recent times and prior to the trial in this matter you had been working at the Commonwealth Bank as a Team Leader in 'direct banking'. Dr Cunningham describes you as the manager of a Commonwealth Bank call centre. Mr Kounnas told me that you had been successful in this employment, and you were managing a group of 15 to 20 people. In the written reference from your mother, she refers to your success in this job.
36Mr Kounnas submitted that notwithstanding your autism spectrum disorder you present as a capable, hardworking person. Your success at the Commonwealth Bank seems somewhat at odds with Dr Cunningham’s descriptions of your deficits and intelligence and your overall circumstances as described in his 2021 report.
37You have been in a relationship with Holly McManus[12] for some time. Ms McManus gave evidence at the trial. She said she met you through a mutual friend in December 2022. You commenced your relationship in February 2023. She began seeing you regularly and living with you soon after that. She said in her experience you have been able to control yourself in arguments with her even though it was apparent you would become very frustrated. She said you had been entirely respectful to her in your sexual relationship.
[12] A pseudonym.
38Your mother also gave evidence at the trial. She spoke of your difficulties at school. She said she took you to several paediatricians and specialists and that you had been diagnosed with ADHD when you were young. You were prescribed medication.
39Character references were tendered from the following people:
(a) Holly McManus, a friend;
(b) your father, Jacob[13];
(c) Margaret Romeo[14], who knows you through your mother;
(d) Simone Purchas[15], who also knows you through your mother;
(e) Adam Wilson[16], another friend;
(f) Caroline Coombs[17], a friend of your mother's;
(g) Christopher Farrugia[18], your mother's partner; and
(h) your mother.
[13] A pseudonym.
[14] A pseudonym.
[15] A pseudonym.
[16] A pseudonym.
[17] A pseudonym.
[18] A pseudonym.
40The references refer to the difficulties you have had in social interactions and in controlling your emotions. The observations seem consistent with the opinions of Dr Cunningham. Several of the references suggest this offending is 'out of character'. None of the references refer to your criminal history.
Criminal History
41You have a serious enough criminal history. Most of your offences have been drug related. You received a community correction order back on 30 September 2013 for trafficking in ecstasy, GHB and dealing in suspected proceeds of crime and possessing a prohibited weapon. You breached that order and on 24 June 2014 the contravention was dealt with along with further offences including trafficking methylamphetamine and unlawful assault. You were sentenced to a period of three months’ imprisonment combined with a further community correction order. In November 2015 another correction order followed for handling stolen goods, using cocaine and ecstasy and a possession of weapons offence. On 22 December 2016 for a further offence of trafficking a drug of dependence you were placed on another community correction order for a period of two years with a condition that you perform 200 hours of unpaid community work and supervision conditions.
42Given this history I do not accept that you are a person of good character. You have no prior convictions for sexual offences or family violence which is noteworthy, but you do have a prior conviction for unlawful assault.
43Overall, your prior convictions are different than the current offences, so their significance is limited but, in my opinion, your criminal history is relevant to the assessment of your prospects of rehabilitation. Your history and what I have been told indicates problems with drug use over the last decade. Further you have had several correction orders designed to assist your rehabilitation, but this has not succeeded.
44In assessing you prospects of rehabilitation I have taken into account the evidence of Ms McManus concerning your behaviour in your relationship with her and the evidence of your positive progress in your employment with the Commonwealth Bank. These matters provide some hope for your future. The reference material also establishes that in recent times your personal and work situation has been positive. Dr Cunningham notes in his 2023 report the overall improvement in your situation since he wrote the 2021 report.
45On the other hand, you have not displayed any insight or remorse for this serious offending and your personality deficits and difficulties in social interaction and ongoing drug use are likely to remain an impediment to your rehabilitation. There is hope for you, but I regard your prospects of rehabilitation as uncertain.
46Of course, in sentencing you I must have regard to the need to facilitate your rehabilitation and re-integration into the community and balance that against the more punitive aspects of sentencing that apply in this case.
Seriousness of offences
47Turning then to the seriousness of these offences.
48Rape is an inherently serious offence as reflected in the maximum penalty of 25 years' imprisonment and the standard sentence of 10 years. In the case of Mokhtari,[19] the Court of Appeal said this of the offence or rape:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by any other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.'[20]
[19]DPP v Mokhtari [2020] VSCA 161.
[20] Ibid [41].
49Moreover, the offences in this case fall into the category of family violence or intimate partner violence.
50In the case of DPP v Reynolds[21] the Court of Appeal adopted the following passage from the earlier well-known case of Kalala:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This court has repeatedly emphasised the need to condemn family violence, in line with community expectations.'[22]
[21] DPP v Reynolds [2022] VSCA 263.
[22] Ibid [75].
51In Reynolds the court concluded:
'As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending.'[23]
[23] Ibid [77].
52Clearly, those principles are all important in this case. Additionally, the need to deter you from further offending in this way is also significant.
53I accept that this offence of rape involved the following serious features:
· The rape took place after you had committed acts of violence in the family home against Ms Simpson and your son.
· Your three-year-old son was in the house at the time although there is no evidence that he witnessed the offences against Ms Simpson.
· Ms Simpson was in fear of further acts of violence if she did not submit.
· After you told Ms Simpson you were going to have sex with her, and she told you she did not want to have sex, you left the bedroom for some time before returning. Therefore, you had time to reflect on whether you would commit the offence and you went ahead and penetrated Ms Simpson notwithstanding the time you had to consider in this case.
· In that time the victim was petrified, she was crying and shaking on the bed.
· You penetrated her despite her telling you repeatedly that she did not want to have sex and crying throughout.
· You did not use a condom and you ejaculated increasing the risk of pregnancy.
· The offending occurred in the family home where Ms Simpson, your intimate partner should have been safe.
54In my opinion your purpose in committing rape was to exert control over Ms Simpson. On her evidence you wanted to get her pregnant; you viewed sexual intercourse without free agreement against the backdrop of an assault as a demonstration of her love for you, a narcistic and distorted view of an intimate relationship. She was understandably fearful that pregnancy would further tether her to you. The threat to kill offence was a last gasp attempt by you to stop her leaving you and exercise control over her, trapping her in the relationship. It is apparent from what you said to her that you considered her your property.
55There can be no conclusion consistent with the evidence and the jury verdict, other than that you well understood Ms Simpson was not freely agreeing to sexual intercourse.
56The psychological material tendered provides some context to your controlling and dysregulated behaviour as seen in these offences and is relevant in a general sense to the assessment of your moral culpability for all the offences but falls short of reducing your moral culpability in line with Verdins principles and no such submission was made. [24]
[24]R v Verdins & Ors [2007] VSCA 102.
57I regard your moral culpability for the offending as considerable.
58I accept the submission of Mr Kounnas that some of the aggravating features often present in this type of offending are not present and that the rape offence was not protracted. On the other hand, the rape continued long enough for you to ejaculate in line with your stated intent of getting Ms Simpson pregnant.
59Mr Kounnas conceded that a significant period of imprisonment is the only sentence open but submitted that this offending falls below the mid-range of seriousness. He accepted that there are some aggravating features in this case, namely that Ms Simpson was your intimate partner and there was some violence used and that the fear of violence existed, but he submitted that the offending did not involve significant violence.
60Of course, the absence of aggravating features is not of itself mitigating. Rape is an offence that covers a wide array of circumstances, and it is therefore difficult to assign precisely where an offence falls in the spectrum of seriousness; suffice to say this is a serious example of rape.
61The threat to kill offence was a further example of controlling behaviour. You were jealous of an ex-boyfriend and attempting to make the victim stay in the relationship against her will. You were angry and out of control and menacing. This is clear from the audio recording. This was a significant example of a threat to kill offence in a family violence setting, occurring after you had raped the victim some nine days earlier.
62The common law assault offence is serious enough in a family violence context, has been argued by the prosecution as part of the context for the rape offence which I have accepted. There is therefore overlapping criminality between these charges and the rape offence.
Standard Sentence
63Rape is a standard sentence offence. The standard sentence applies to an offence in the middle range of seriousness considering only its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case. It is a legislative guidepost. It is not a mandatory sentence; nor is it the starting point from which to add or subtract time.
64In fixing the sentence in this matter I have had regard to the standard sentence amongst all the matters to which I must have regard in deciding the appropriate sentence. The sentence I will impose in this matter is lower than the standard sentence.
Current Sentencing Principles
65In considering current sentencing practices for a standard sentence offence, I must have regard only to sentences imposed since the introduction of the standard sentence scheme. I was referred by the prosecution to the case of Clarke v DPP [2022] VSCA 89, which was an intimate partner rape where the Court of Appeal reduced a sentence of 8 years with a minimum of 5 years after trial to 3 years with a minimum of 18 months.[25]
[25] Clarke v The Queen [2022] VSCA 89.
66There are multiple serious features of your offending that were not present in case of Clarke.[26] This is a significantly more serious case.
[26] Ibid.
67In any event current sentencing practices are just one of the many factors I must consider in deciding the appropriate sentence. What is required is individualised justice to the circumstances of your case.
Burden of imprisonment
68Mr Kounnas submitted that your time on remand has been difficult. Your Autism spectrum disorder and personality characteristics have seen you on the wrong end of prison violence. You do have a job working six days a week in the kitchen. Mr Kounnas also submitted that the loss of your employment weighs heavily upon you and that that employment had been a stabilising factor in your life. He submitted that the loss of contact with your son Domenic which is understandable given the offences in this case has had a substantial impact on you. I take all these matters into account as increasing the burden of the period of imprisonment that is inevitable for these offences.
69Mr Kounnas further submitted that your time in custody will be more onerous than the average prisoner because of your autism spectrum disorder and your ADHD and therefore Verdins principle 5 applies.[27] I accept Verdins principle 5 which is that your burden of imprisonment will be greater than the average prisoner because of your mental state conditions does have application. I don't accept that principle 6, which relates to a significant worsening of your mental state, applies. I do not have the evidence to draw that conclusion. But I do accept that this period of imprisonment which will be the first lengthy period of imprisonment you serve will weigh heavily on you.
[27]R v Verdins & Ors [2007] VSCA 102.
Totality
70The totality principle requires that the total sentence I impose must be just and proportionate to the total criminality of the offending. There is overlapping criminality between the assault offences and the rape in that the background of violent conduct closely before the rape was part of the evidence relevant to the issue of free agreement, and I have taken into account the circumstances of those two offences in assessing the gravity of the rape. I have decided that I will impose prison sentences wholly concurrent for the common law assault offences. The threat to kill is also closely connected to the conduct that gave rise to the common law assault and rape offences, but it occurred as a separate incident and requires some cumulation which I have limited to comply with the totality principle in this case.
71The non-parole period is the minimum period justice requires you to serve before becoming eligible for release. The non-parole period mitigates punishment in favour of rehabilitation. It must be consistent with the objective gravity of the offence. Although you have served one short period of imprisonment in the past, this will be your first substantial sentence and I have decided to allow for a reasonably extended period of supervision should the parole board release you when you become eligible for parole. In sentencing you for a standard sentence offence I am required to impose a period of parole no lower than 60 per cent of the head sentence unless I am satisfied it is in the interests of justice to do so. No submission was made that I should impose a period of lower than 60 per cent of the head sentence in this case and I have not done so.
72I now turn to the sentences in this case.
73In respect of Charge 6 of common law assault you are convicted and sentenced to a period of imprisonment of 6 months.
74In relation to Charge 9 of common law assault you are convicted and sentenced to a period of imprisonment of 8 months.
75In relation to Charge 10 of rape you are convicted and sentenced to a period of imprisonment of 6 years and 6 months.
76In respect of Charge 12 of threat to kill you are convicted and sentenced to a period of imprisonment of 12 months. Two months of the sentence on Charge 12 is cumulative on the sentence for rape which is the base sentence. That makes a total effective sentence of 6 years and 8 months.
77I fix a non‑parole period in this matter of 4 years and 4 months. I declare pre‑sentence detention to be deducted from the sentence that I have imposed at 124 days.
78There are no other orders I need to make in this matter?
79MR FISHER: No, Your Honour.
80MR KOUNNAS: No, Your Honour.
81HIS HONOUR: All right, thanks to both counsel and their instructors in this matter and I'll now adjourn.
82MR FISHER: As Your Honour pleases.
- - -
0
4
0