Director of Public Prosecutions v Morey (a pseudonym)
[2022] VCC 955
•17 June 2022
1
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN MOREY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Warrnambool | |
DATE OF TRIAL: DATE OF PLEA: | 16, 17, 18, 21, 22, 23, 24, 25, 28, 29 March 2022 23 May 2022 | |
DATE OF SENTENCE: | 17 June 2022 | |
CASE MAY BE CITED AS: | DPP v Morey (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 955 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Three charges of rape and one charge of common law assault committed on former domestic partner – not guilty plea – multiple rapes committed in degrading and humiliating circumstances – guilty plea to a charge of theft of motor vehicle – sexual offending and assault committed during the one episode – ice use prior to offending – serious offending – moral culpability high – absence of remorse – limited but relevant criminal history – delay – burden of imprisonment due to COVID-19 – sentencing discount for charge of theft – guarded prospects of rehabilitation – specific and general deterrence, just punishment and denunciation relevant sentencing considerations – standard sentence offence – serious sexual offender on third charge of rape – cumulation - totality
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Cheung v. The Queen (2001) 209 CLR 1; Pasinis v. The Queen [2014] VSCA 97; Filiz v. The Queen [2014] VSCA 212; Jurj and Miftode v. The Queen [2016] VSCA 57; Worboyes v. The Queen [2021] VSCA 169; Brown v. The Queen [2019] VSCA 286; Flynn (a pseudonym) v. The Queen [2020] VSCA 173; Stamper (a pseudonym) v. The Queen [2021] VSCA 323
Sentence: 12 years, four months imprisonment with a non-parole period of eight years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A.J. Moore (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr C. Mylonas (plea and sentence) | Brown McComish Solicitors |
HER HONOUR:
1Tristan Morey[1], on 29 March 2022 you were convicted by a jury of 12 of one charge of common law assault and three charges of rape contrary to s 38(1) of the Crimes Act 1958 on the trial indictment. The maximum penalty for the offence of common law assault is five years’ imprisonment pursuant to s320 of the Crimes Act 1958. The maximum penalty for the offence of rape is 25 years’ imprisonment. These offences were committed by you on 6 April 2019 in Port Fairy.
[1]A pseudonym has been used to ensure there is no possibility of identification of the victim of the sexual offending.
2Prior to trial, you also pleaded guilty on the plea indictment to a single charge of theft contrary to s74(1) of the Crimes Act 1958, the maximum penalty for which is 10 years’ imprisonment. You committed this offence the following day, 7 April 2019, at Port Fairy when you stole the victim’s motor vehicle.
3The victim of your offending was Matilda Provan[2] with whom you had been in an intimate relationship for approximately two years. That relationship was a volatile one, marked by drug abuse and periods of homelessness. Ms Provan was born in July 1988 and was 30 years old at the time of your offending.
[2]A pseudonym has been used to ensure there is no possibility of identification of the victim of the sexual offending.
4Following trial, you were acquitted of Charges 1, 2 and 3 on the trial indictment arising out of an alleged incident involving the complainant at Lismore on 9 February 2019. You were also acquitted of Charge 4 – intentionally causing injury, but found guilty of the alternate Charge 5 – common law assault, that forms part of the incident at Port Fairy on 6 April 2019. You were also acquitted of Charges 9 and 10 on the trial indictment arising out of an alleged incident at Port Fairy on 7 April 2019. To be clear, the charges of which you were acquitted have no relevance to the sentence I am to impose upon you today.
5You were born in Warrnambool in November 1991 and were 27 years of age at the time of the offending.
Summary of Offending
6I turn now to briefly summarise the facts of this case.
7You fall to be sentenced on a basis consistent with the jury verdict in your trial.[3] The role of a trial judge in interpreting the jury’s verdict for the purpose of sentence is well-established. In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard.[4] Findings made by the sentencing judge must be consistent with the jury’s verdict.[5]
[3]Cheung v The Queen (2001) 209 CLR 1, 9 [6] (‘Cheung’).
[4]Cheung, at [7]
[5]Cheung, at [5] and [14]
8In order to assess the extent of your culpability it is necessary to set out the prosecution case by reference to the Further Revised Summary of Prosecution Opening dated 9 July 2021 and to some of the evidence led at trial.
Charge 5 – common law assault
9On Saturday 6 April 2019 you and Ms Provan woke at the home of a friend in Panmure, having attended a funeral the day earlier. You had both consumed ice on the previous evening. Later that day, the two of you attended Ms Provan’s son’s football game, before returning to Ms Provan’s home in Port Fairy.
10At approximately 5 pm, Ms Provan was getting ready to leave the house to visit a friend. As she was about to leave a verbal argument broke out between the two of you. During this argument Ms Provan threw a glass “crack pipe” at you.
11After this, you ran at Ms Provan from the lounge room into the hallway. She says that you ‘were on top of her’, screaming at her.[6] You then placed your hands around her throat, choking her. This is the conduct that is the subject of Charge 5 – common law assault. In acquitting you of Charge 4 – intentionally causing injury, the jury must not have been satisfied beyond reasonable doubt that Ms Provan was injured by that conduct. The prosecution accepts, and I find, that the jury must have rejected Ms Provan’s account that she was momentarily left unconscious due to your conduct in choking her.
[6]T 69, line 19-21
Charges 6, 7 and 8 - rape
12Following this incident, you continued to verbally abuse Ms Provan. Ms Provan tried to run from you but lost her shoe when she reached the kitchen. At this point, Ms Provan says you reached her, and stood over the top of her holding a hollow metal pipe. You threatened to ‘ram it up her arse’ as you argued with her.[7]
[7]A photo of a hollow metal pipe located in the lounge was tendered at trial, Exhibit J .
13You then walked away, and Ms Provan again tried to retrieve her shoe and head for the back door. However, before she could do so, Ms Provan says you returned with a brown leather belt, saying, ‘If you wanna act like a fucken dog, I'll treat you like a fucken dog.’ Ms Provan says you then tied the belt around her neck, pulling it tight choking her, and said ‘Fucken’ now, crawl, bitch. You're a dog, act like one. Now crawl.' Ms Provan says you then made her crawl on her knees from the back room of the house through to the loungeroom.
14Once there, Ms Provan says you made her kneel at your feet, saying, ‘now sit like a good dog’, while you pulled your pants down. Ms Provan says you then put your penis in her mouth, “ramming it in and out’ while she was sitting there crying. [8] This is the conduct that is the subject of Charge 6 – rape (penile/oral penetration).
[8]T 76, lines 9 – 25
15After this, Ms Provan says you told her to get up on the couch. She told you that she didn’t want to, but you tightened the belt further and said ‘Get the fuck up there, do as you're told, be a good dog'. Ms Provan says you then rammed her head down into the couch and proceeded to penetrate her vagina with your penis from behind. Ms Provan says she was crying, saying, ‘No, please don’t’. This is the conduct that is the subject of Charge 7 – rape (penile/vaginal penetration).
16Ms Provan says you withdrew your penis from her vagina and then grabbed a bottle of olive oil that was sitting on the mantlepiece in the loungeroom.[9] Ms Provan says you used the olive oil to lubricate your penis and then penetrated her anus with your penis. Ms Provan says she was crying and begging you to stop. In response, she says you shoved her head further into the couch and continued to penetrate her anus until you ejaculated. After this, Ms Provan says you walked off without saying a word. This is the conduct that is the subject of Charge 8 – rape (penile/anal penetration).
[9]A photograph of a bottle of olive oil on the mantlepiece of the lounge was tendered at the trial – Exhibit J.
17Ms Provan left the house to get cigarettes and contacted two friends and sent them photographs showing bruising to her neck with an accompanying text stating, ‘Why do I let him keep doing this to me’ and ‘… and he didn’t hurt me according to him’.[10]
[10]Exhibit F
Summary of Offending – Plea Indictment
18I turn now to the facts relevant to Charge 1 on the plea indictment – the charge of theft of a motor vehicle.
19On 7 April 2019 you had arrived at Ms Provan’s residence a little ahead of her after the two of you had been at the beach in Port Fairy. When Ms Provan arrived back at her premises she observed you stacking food and alcohol into the back of her car.
20Ms Provan approached the car as she wanted to retrieve a packet of cigarettes that she had left inside the vehicle, and you told her to never contact you again and threw a dildo at her before driving off. You were also observed by a neighbour driving off from the house at a fast rate of speed.
Arrest and police investigation
21You were arrested by police on 8 April 2019. You were interviewed by police that day at Warrnambool Police Station. In that interview, when asked about the events of 6 April 2019, you denied being at Ms Provan’s address that day, stating that she had a full intervention order precluding you from being there. You also denied assaulting Ms Provan, either physically or sexually. You told police that you and Ms Provan would engage in “very rough” sex and that you had consensual anal sex on Friday 5 April 2019. You told police the red marks on Ms Provan’s neck were “hickies” that you had given her between 3 April and 5 April 2019.
Procedural history
22You were charged with the offences that were the subject of the trial and remanded on 8 April 2019. You have been remanded since that date. You were committed to stand trial following a committal hearing conducted between August – September 2019. A trial listed to commence on 25 May 2020 was vacated due to the impact of COVID-19 on jury trials. A trial commenced, but did not conclude through no fault of yours, in July 2021. The matter was not reached at the circuit commencing in January 2022 and your trial proceeded to conclusion in March 2022, close to three years after you were charged. I return to the relevance of this delay later in my reasons for sentence.
Offence gravity and criminal culpability
23 I turn now to discuss the nature of your offending and the extent of your culpability for this offending.
24 The offence of rape is an inherently serious crime, as gauged by the maximum penalty of 25 years’ imprisonment fixed by Parliament.
25 In assessing the objective gravity of your offending, I consider a number of features elevate the seriousness of your conduct. Notably, the first rape was proceeded by a violent act where the victim was choked. The fact you repeatedly raped the victim, despite her pleading with you to stop and her obvious signs of distress, demonstrates a determination on your part to commit these acts of rape against her will. The anal rape was the last in a sustained act of sexual violence, and only ended after you had ejaculated inside her. Moreover, the victim was repeatedly raped in her home, where she was entitled to be safe from harm. It is an aggravating feature of your offending that these rapes were instances of extremely serious family violence, perpetrated against your intimate partner despite the existence of an active intervention order. As the authorities have repeatedly highlighted, specific and general deterrence are very important factors in sentencing men who sexually assault their partners despite the protection sought to be afforded by an intervention order.[11]
26 On your behalf, Mr Mylonas submitted that I could not be satisfied to the criminal standard that the rapes were preceded by your conduct in tying a belt around the victim’s neck and forcing her to crawl through the house on her knees, “like a dog”. Mr Mylonas argued that the acquittal on the other charges, and more particularly, on the charge of intentionally causing injury by the choking preceding the rapes, means that the jury did not accept Ms Provan’s evidence in its entirety.
27 I have carefully considered this submission and the evidence led at trial. Throughout her evidence, including when challenged under cross-examination, Ms Provan consistently maintained her account of this conduct preceding and continuing whilst she was raped. Your conduct in tying the belt around her neck was an integral part of the narrative she gave of the repeated acts of sexual penetration without her consent. Additionally, Ms Provan complained of this conduct the following day to her neighbours stating that you had “tied a belt around her neck and walked her around the house like a dog”. Her complaint, made at that time, bolsters the credibility of her account.
28 Although you were not charged with any offence arising from this conduct, I am satisfied that before raping Ms Provan, but after choking her by placing your hands around her neck, you then tied your belt around her neck and forced her to walk on her knees, referring to her as a dog. With the belt acting as a leash and whilst Ms Provan was on her knees, you committed the first act of penile-oral penetration. The fact you had continued to hold Ms Provan by the leash of the belt during the repeated acts of sexual penetration can only have increased her sense of fear and helplessness. It was degrading and humiliating conduct. Your moral culpability for your offending is high and increased with each act of sexual penetration against Ms Provan’s will. Plainly, this is a very serious example of the offence of rape.
29 The impact of your offending is clearly reflected in Ms Provan’s victim impact statement dated 16 May 2022. She describes feelings of anxiety and wanting to feel “normal” again. She says the offending still causes her nightmares and has impacted on her ability to trust others. Ms Provan says the offending and its ramifications - leading her to leave the house without any car - left her feeling isolated. She describes suffering emotionally, physically and financially. I have had regard to the impact of your offending on the victim in the sentence I impose.
30 I accept that the assault and multiple rapes occurred in the course of the one episode. I also accept the submission that other features which may aggravate the offence of rape were not present here, such as the use of a weapon.[12] The offending did not occur over a lengthy or protracted period of time, and formed part of a single course of conduct. However, the repetition of the rapes, without desisting, all aggravate the seriousness of your offending in its totality.
31 Non-consensual sexual penetration is an inherently violent act, aggravated here by having effectively restrained the victim with the belt. For completeness, I reject the submission of Mr Mylonas that the fact you and the victim had previously engaged in these sexual acts on a consensual basis lessened the criminality of your conduct. Consistent with the jury verdict, I find that you repeatedly sexually penetrated the victim without her consent and in circumstances where you did not reasonably believe her to be consenting. You showed an utter disregard for the bodily integrity of the victim.
Personal circumstances
[11] Pasinis v The Queen [2014] VSCA 97 [53] & Filiz v The Queen [2014] VSCA 212 [21].
[12]Jurj and Miftode v The Queen [2016] VSCA 57
32I turn now to discuss your personal history. I have drawn much of this information from the psychological report authored by Daria Sizenko, provisional psychologist and Pamela Matthews, Forensic Psychologist dated 16 May 2022 that was filed on your plea. You were assessed by Ms Sizenko on 10 May 2022 via video conference following the jury verdict.
33You are now 30 years old. You enjoyed a relatively uneventful childhood, growing up with your parents and older twin sisters on a family beef farm close to Warrnambool. Your maternal and paternal grandparents also lived on this property through your childhood.
34You were educated to Year 10 at Brauer College in Warrnambool. Although you struggled academically, you made friends at school and enjoyed sport. You were however, suspended on several occasions due to poor behaviour in school.
35After leaving school, you began an apprenticeship in metal fabrication. You worked in this area for a year after completing your apprenticeship, following which you worked in various capacities on local dairy farms. You have maintained full-time employment in your adult years, ultimately working as a general labourer for a tree-felling business prior to your remand.
36You have a history of both alcohol and drug abuse. You began drinking alcohol at the age of 15 years. In the lead up to these events, you describe drinking approximately six bottles of beer each day. However, there is no evidence to suggest you had been drinking prior to this offending. You began smoking cannabis at the age of 18 and methamphetamine use began when you were 22. From the age of 25, you report that you were using methamphetamine daily, with your use increasing during your relationship with Ms Provan. As stated earlier, you had consumed the drug ‘ice’ the day before this offending.
37Your relationship with Ms Provan began approximately two years prior to these events and was your first significant intimate relationship. The relationship was a volatile one and you broke up on a number of occasions. Both of you were using drugs, including methamphetamine throughout your relationship. Periods of instability led to you both being homeless at times, and it was through child protection services that Ms Provan had secured the house in Port Fairy in 2019.
38Some years prior to this offending, you walked out on a contractual obligation to complete work on a diary-farm – a situation you attribute to Ms Provan – and your parents stepped in to complete the contract. The fallout from this situation led to the breakdown of your relationship with your parents, from whom you have now been estranged for a number of years. You do, however, maintain a close relationship with other family members including your grandparents, a maternal aunt, and your sisters, both of whom have maintained contact with you throughout your time in custody.
39You have admitted your prior criminal record. Although you have reasonably limited prior criminal history and no history of sexual offending, you do have one relevant prior criminal conviction relating to Ms Provan.
40In May 2018, you were sentenced to 135 days imprisonment and an 18-month Community Correction Order for the offences of making a threat to kill and using a carriage service to harass. You were also sentenced for firearms offences.[13]
[13]Prohibited person possess a firearm and possess unregistered general category handgun.
41The charges of making a threat to kill and using a carriage service to harass arose from events in February 2018 when you sent a series of abusive and threatening text messages to Ms Provan about the whereabouts of the wife of a friend of yours. You wrote that if your friend’s wife was with Ms Provan that she should ‘fucking look out’ and that you would ‘…belt the fuck out of you’. The relentlessly abusive messages included you writing to Ms Provan that, ‘I’m going to bring my gun, so don’t fuck with me’, “I don’t give a fuck if your kids are there… u have done enough damage in my life you lying, fucken’ bitch’ and “you will die tonight if I found out she is there’.[14] You wrote that an intervention order would not stop you. I return to the relevance of this prior matter later in my reasons for sentence.
[14]Text messages that formed part of Exhibit A in the trial.
42I have given little weight to your other prior convictions, including fines imposed for driving offences in August 2017, which are unrelated to the offending for which you are to be sentenced.
Matters relevant in mitigation
43Having discussed the gravity of your offending, I turn now to discuss a number of matters that were advanced by Mr Mylonas on your behalf in mitigation of sentence.
44First and foremost is the issue of delay. A delay of close to three years in the finalisation of these charges is significant. This delay has been occasioned through no fault of yours. This delay was caused by two factors: firstly due to the delays brought about by the impact of COVID-19 on jury trials; and secondly, due to the fact that the trial which commenced in mid-2021 was unable to conclude for reasons that are not attributable to you and was only able to be relisted in March 2022. I accept that having these very serious charges hanging over your head for a period of close to three years, not knowing the outcome, has been a source of anxiety and stress for you and moderates the sentence I will impose.
45Secondly, and related to this delay, is the fact that your time of remand has run parallel to the restrictions imposed by prison authorities to respond to the COVID-19 pandemic. These have included an absence of face-to-face contact with family and other supports you rely upon. Custodial programs have been limited. This has undoubtedly made your time in custody awaiting trial more difficult, particularly noting that it is your first lengthy period on remand. It is only in the second and third years of your period on remand that you have been able to undertake work in woodwork and on numberplate production. For the first 12 months of your remand, no work programs were available to you.
46Thirdly, you pleaded guilty to the charge of theft of motor vehicle on the plea indictment. In doing so, you accepted responsibility for this dishonest act. There was utility in this plea in saving any additional court time by disputing this charge. You are entitled to a sentencing discount in recognition of your plea to that charge, particularly at this time.[15]
[15]Worboyes v The Queen [2021] VSCA 169
47You did not plead guilty to the offences in respect of which you were found guilty by the jury. You still maintain your innocence in relation to these offences. This, of course, is not an aggravating feature and you are not to be punished for running a trial. However, there is no indication that you accept responsibility for your conduct in assaulting and then repeatedly raping the victim and, as I discuss later in my reasons, you have demonstrated no remorse in respect of these crimes. An offender who pleads guilty to an offence is entitled to a significant sentencing discount. Here, you are not entitled to such a sentencing discount in respect of these offences.
48I turn now to your prospects of rehabilitation. I accept that you have a history of hard work and have family support available to you on your eventual release from custody. I also accept that you have a relatively limited prior criminal history and, in particular, no prior history of committing sexual offences.
49You have not been assessed as having any diagnosed mental health issues, major depressive disorder or other mood disorder although the authors of the psychological report note your flat mood and low motivation at the time of their assessment. Based on your history, the authors conclude you would have met the diagnostic criteria for a stimulant use disorder, an alcohol use disorder and a cannabis use disorder, stating that these have been in sustained remission in the controlled environment of custody. The authors opined that these substance abuse disorders would have been likely to impact on your decision-making, and therefore, your offending behaviour at the time of these offences.
50I accept your substance abuse is relevant to the context in which your offending occurred and that addressing your methamphetamine use will be important to your long-term rehabilitation. However, your substance abuse disorder at the time of this offending does not reduce your moral culpability for your conduct or operate to mitigate your sentence. Your counsel did not submit that any of the principles in Verdins[16] were enlivened by these factors and there is no evidentiary basis for me to conclude otherwise.
[16]R. v Verdins 16 VR 269
51A number of character references were filed on your behalf on the plea. Your sister says you grew up in a caring and supportive home environment and that you are a loving and caring brother. Your sister attests to your work ethic, saying you have never been afraid of hard work.[17] Your sister clearly remains supportive of you. Others for whom you have worked also speak highly of your work ethic, with Donna Pratt describing you as a “valued asset” to the tree lopping business she runs with her husband[18], and Ken and Anne Jane describing you as a valued member of staff, who was self-motivated to work hard on their dairy farm for six years.[19] Consistent with these character references, I find that you have a strong work ethic and sound prospects of securing employment into the future.
[17]Reference of Accused’s sister dated 19 May 2022, part of Exhibit 3
[18]Reference of Donna Pratt dated 17 May 2022, part of Exhibit 3
[19]Reference of Ken and Anne Jane dated 17 May 2022, part of Exhibit 3
52However, despite these positive factors, I am unable to conclude you have strong prospects of rehabilitation. As stated, you continue to demonstrate little insight into your offending or remorse for your conduct. When asked by the authors of the psychological report about the events the subject of the trial verdict, you maintain these are a ‘he said, she said’ situation. When asked about the impact of your offending on the victim, you responded, ‘as far as I’m concerned, she wasn’t assaulted’. Following psychometric testing, you were assessed by the authors as being a medium risk of future violent re-offending. I accept that assessment. The authors concluded:[20]
[Mr Morey] demonstrated limited insight and flawed judgment both regarding his emotional and behavioural difficulties and his offending. He denied having issues with impulse control, despite a long-term history of drug use.
[20]Psychological report of Pamela Matthews and Daria Sizenko dated 16 May 2022, Exhibit 2
53Moreover, your prior conviction for offending that involved sending repeatedly abusive, threatening messages directed at Ms Provan in 2018 is also relevant to my assessment of your prospects of rehabilitation. These threatened acts of significant violence were an earlier instance of intimidatory and abusive conduct directed at your intimate partner. The sentence imposed on that occasion, including a period of imprisonment, did not deter you from this sexually violent offending. Concerningly, you were subject to the Community Correction Order imposed for the earlier offending at the time you committed these serious offences. The circumstances in which you repeatedly raped Ms Provan represent a significant escalation in your offending behaviour towards her, undeterred by your earlier sentence.
54As to your history of drug and alcohol abuse, you have completed a 24-hour drug and alcohol program whilst in custody but have otherwise never attempted any program of drug and alcohol rehabilitation or counselling. You advised the authors of the psychological report that you do not wish to engage in treatment, having been abstinent for the past three years in custody. Nonetheless, the authors of the report recommend ongoing treatment to maintain sobriety, in addition to psychotherapeutic treatment to address your offending behaviour. Having made this recommendation however, the authors qualify their assessment, stating:[21]
[Mr Morey’s] disinterest in treatment and lack of insight into his offending, substance use issues, and personal flaws are likely to be a significant hinderance in therapeutic engagement and overall rehabilitation.
[21]Ibid, page 8
55Presently, I am unable to assess your prospects of rehabilitation favourably. My guarded assessment of your prospects of rehabilitation means that the sentence I impose must also operate to deter you specifically from future offending. Amongst other matters, your preparedness to engage in offence-specific and drug treatment, directed to your long-standing abuse of methamphetamine, will be critical to your long-term future prospects.
56Notwithstanding my assessment of your future prospects, I accept the submission made on your behalf that at the age of 30, rehabilitation remains a factor of importance to your sentence. I have taken that into account in my consideration of an appropriate non-parole period.
Other sentencing considerations
57I now wish to discuss other relevant sentencing considerations.
58I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act 1991. In a case such as this, the most significant sentencing considerations are those of general deterrence, just punishment and denunciation. In sentencing you, I must deter others from engaging in degrading acts of sexual violence against their intimate partners. I unequivocally denounce your serious criminal conduct.
59The offence of rape is a ‘standard sentence offence’. As these offences were committed after 1 February 2018, the standard sentence scheme applies to the sentence I am to impose on each of the three charges of rape. The applicable standard sentence is 10 years’ imprisonment.
60The scheme is set out in s5A and s5B of the Sentencing Act 1991. The scheme requires me to take the standard sentence into account as one of the factors relevant to sentencing. However, as stated in Brown v the Queen,[22] the standard sentence is a legislative guidepost only, and does not affect the established ‘instinctive synthesis’ approach to sentencing.
[22][2019] VSCA 286 at [4]
61The only previous sentences to which I may have regard when considering current sentencing practices are those that have been imposed under the standard sentence scheme for the offence of rape.[23] The prosecution referred me to a number of cases where the Court of Appeal considered sentences imposed for the offence of rape subsequent to the introduction of the standard sentence scheme, and a sentence imposed by this Court.[24] I have considered these cases which give some broad guidance but note that the factual circumstances in each case differs from those that present in your case. Of significance, most of these sentences were imposed following a guilty plea.
[23]Section 5B(2)(b) of the Sentencing Act 1991
[24]DPP v Jordan Drake [2019] VSCA 293; Lockyer (a pseudonym) v The Queen [2020] VSCA 321; DPP v Serin [2020] VCC 1190; Stamper (a pseudonym) v The Queen [2021] VSCA 323
62I have had regard to the sentence imposed by the Court of Appeal in Lockyer for two charges of rape following a trial but note that this was a case where the Court of Appeal considered there to be “powerful mitigating factors” that operated to reduce the sentence. These included an absence of prior convictions, despite a childhood marked by significant disadvantage and the accused’s reasonable prospects of rehabilitation and family support.[25] In contrast, the matters advanced in mitigation of your sentence, whilst relevant, are not as significant in moderating the sentence to be imposed. As always, each case turns on its own facts and circumstances. As was made clear in the case of Dalgliesh, current sentencing practices are only one of a number of factors to which I must have regard in sentencing you. [26]
[25]Lockyer at [65]
[26]DPP v Dalgliesh (Pseudonym) [2017] HCA 41, (2017) 262 CLR 428
63Pursuant to s6B(2)(a) of the Sentencing Act 1991 you are to be sentenced as a serious sexual offender on Charge 8 after being sentenced to a term of imprisonment on Charges 6 and 7. Section 6D of the Act requires that the protection of the community be the principal purpose of sentencing for Charge 8. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community, and in the circumstances of your case, I accept that submission.
64Section 6E of the Sentencing Act 1991 requires that the term of imprisonment imposed on Charge 8 must, unless otherwise directed, be served cumulatively upon other sentences of imprisonment that are imposed.
65As stated, I have had regard to the standard sentence of 10 years as one of the factors relevant in sentencing you on the three charges of rape. The standard sentence is the period specified by the Sentencing Act 1991 that is the appropriate sentence for offences in the mid-range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offence. It is a legislated guidepost, no more.
66The instinctive synthesis involved in sentencing still requires a balancing of many factors including the nature and objective seriousness of the offending, your moral culpability, as well as your personal circumstances and the matters to which I have referred in mitigation of sentence. Here, whilst I have concluded these were grave examples of the offence of rape, it is also relevant to my sentence to acknowledge the separate offences were committed as part of a course of conduct that formed part of the one episode and to ensure you are not doubly punished for overlapping conduct. I have taken these matters into account by imposing significant periods of concurrency on each sentence.
67The individual sentences I have imposed on each of the three rape charges fall just below the standard sentence. In imposing this sentence, I have given weight to the punitive effect of the near three-year delay in these proceedings, compounded by the fact that your time on remand has been particularly hard due to the impact of COVID-19.
68In considering the amount of cumulation to be ordered, I have assessed the extent to which each individual offence added to the total criminality of your conduct during the course of the single episode. I accept that the sentencing principle of totality means that a significant degree of concurrency is appropriate. I accept the rapes were committed in close proximity in time and against the one victim.[27] However, some cumulation is appropriate to reflect my assessment of the objective gravity of the three acts of rape that were each brutal and violating and were perpetrated despite the victim’s pleas and obvious distress. I have also had regard to the legislative presumption created by s6E of the Sentencing Act 1991. As stated by McLeish JA in Stamper (a pseudonym) v The Queen:[28]
…in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.
[27]Flynn (a pseudonym) v The Queen [2020] VSCA 173
[28]Stamper (a pseudonym) v The Queen [2021] VSCA 323, at [40], citing Flynn
Sentence
69Taking into account the factors to which I have referred, and guided by the standard sentence and maximum penalty for the offence of rape, I sentence you as follows:
Trial indictment
70In respect of the trial indictment:
71On Charge 5 – common law assault – you are convicted and sentenced to 10 months’ imprisonment;
72On Charge 6 – penile/oral rape – you are convicted and sentenced to 9 years’ imprisonment;
73On Charge 7 – penile/vaginal rape – you are convicted and sentenced to 9 years’ imprisonment; and
74On Charge 8 – penile/anal rape – you are convicted and sentenced to 9 years’ imprisonment. This is the base sentence.
75I direct that one month of the sentence imposed on Charge 5, 18 months of the sentence imposed on Charge 6 and 18 months of the sentence imposed on Charge 7 be served cumulatively upon the sentence imposed on Charge 8 and upon each other.
Plea indictment
76On the plea indictment, you are convicted of Charge 1 – theft of the motor vehicle – and sentenced to 18 months’ imprisonment. I direct that 3 months of the sentence imposed on Charge 1 of the plea indictment be served cumulatively upon Charge 8 of the trial indictment and upon the periods of cumulation ordered in respect of Charges 5, 6 and 7 on the trial indictment.
77Pursuant to section 89(4) of the Sentencing Act 1991, your licence is cancelled and you are disqualified from driving for a period of 12 months, with effect from today’s date. This order relates to charge 1 on the plea indictment.
78This gives a total effective sentence of 12 years, 4 months’ imprisonment. I fix a non-parole period of eight years imprisonment before you are eligible for parole.
79Pursuant to s18 of the Sentencing Act 1991, I declare that 1092 days of pre‑sentence detention be reckoned as already served.[29]
[29]On 2 December 2019 you were sentenced to 60 days’ imprisonment for breach of the CCO by this offending. On 24 February 2020 you were sentenced to 14 days’ imprisonment for breach of the FVIO constituted by sending a letter to your grandmother containing a message for the complainant.
80Pursuant to s6F of the Sentencing Act 1991, I direct that the fact you are sentenced as a serious sexual offender in respect of Charge 8 be entered into the record of the court.
81Section 6AAA of the Sentencing Act 1991 requires me to indicate the sentence I would have imposed had you not pleaded guilty to the charge of theft on the plea indictment. There is an obvious artificiality in doing so. As best I can, I indicate that had you not pleaded guilty to the charge of theft, the sentence I would have otherwise imposed would have been 12 years, 8 months’ imprisonment, with a non-parole period of 8 years, 4 months.
82Finally, I make the disposal order sought by the prosecution, noting it is not opposed.
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