Director of Public Prosecutions v Moss (a pseudonym)
[2021] VCC 1385
•23 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN MOSS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July and 20 September 2021 |
DATE OF SENTENCE: | 23 September 2021 |
CASE MAY BE CITED AS: | DPP v Moss (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1385 |
REASONS FOR SENTENCE
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Subject: Rape
Catchwords: Guilty verdict after trial – intimate partner relationship – brief offending
without aggression or violence - lengthy delay in prosecution –
excellent prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: DPP v Lian [2019] VSCA 75; R v Simon [2010] VSCA 66; Hasan v The
Queen (2010) 31 VR 28; R v Mason [2001] VSCA 62; R v Banting
[2006] NSWCCA 53; Jurj v The Queen [2016] VSCA 57; Thomas
[2019] VSCA 223; R v Njikodjevic [2004] VSCA 222; R v Merrett (2007)
14 VR 392
Sentence: 5 years imprisonment with a minimum non-parole period of 2 years and
6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Director of Public Prosecutions |
For the Accused | Mr P. Stefanovic | Victoria Legal Aid |
HIS HONOUR:
1Adrian Moss[1], on 24 June 2021, a jury found you guilty of one charge of rape.
[1] A pseudonym.
2In 2013 and 2014 you were in an intimate partner relationship with Rebecca Tranter[2].
[2] A pseudonym.
3On 27 March 2014, the two of you had attended a fundraiser together in Ballarat. Afterwards you returned to your place.
4At trial, Ms Tranter gave evidence, at your home, in a bedroom, after the two of you were kissing on the bed, you left the room and, when you returned, she watched you undress and put a condom on your erect penis. Then, whilst she was lying on her back, she let you put your penis inside her vagina. Not long after, she told you to stop. You did not react. After about three minutes of further thrusting in and out of her, she said 'stop' again and you stopped for about five to 10 seconds before you put your penis back inside her, and, when you started to thrust backwards and forwards again, she hit you to the chest and then you stopped.
5It needs to be made clear it was not the prosecution case your initial sexual penetration of Ms Tranter, after you undressed and put on a condom, was rape. The prosecution case was having been told to stop and having stopped, you put your penis into her vagina again. That is the act of rape alleged and which the jury found proven.
6Ms Tranter reported the matter to police in February 2017.
7Police interviewed you on 13 June 2017. You told them you met Ms Tranter online, things went well and within two or three months you were a couple. You said in the early days of your relationship you stayed at her place where she lived with her parents and, later, she moved in with you for a bit more independence. You said the two of you went to your church together and, when you were having a few issues in your relationship, you went to counselling with the church pastor and his wife. You agreed they counselled both of you not to have sex until you were married. You said the two of you did not follow that guidance.
8On legal advice, you exercised your right to remain silent when the rape allegations were put to you. After the interview you were charged with rape and released on bail.
9You did not give evidence at your trial.
10In the conduct of your defence your counsel, Mr Stefanovic, did not dispute you had had sexual intercourse with Ms Tranter but disputed she told you to stop, that you did, and then put your penis inside her again. By its verdict the jury accepted that she had told you to stop, that you did, and then you did put your penis inside her again.
11Ms Tranter read her victim impact statement in court. She said, before she met, you she had psychological issues but they were in control. That changed as a result of your crime. She sought help from the church pastor and from friends but felt they let her down. She said that the pastor and his wife blamed her and the friends she told did not really react. She left the congregation, she lost her four closest friends, and was asked to leave the choir.
12She said she decided to make a report to police when her father died in 2016. Since, her brother and his wife, and a cousin, have been her greatest support. She said she has suffered flashbacks and mental scarring. The court process was very distressing for her. She feels broken and angry. She is able to work only part-time and takes medication. She said with psychiatric and psychological support, which is ongoing, she is getting better and she is now a survivor.
13You have admitted a criminal record.
14In May 1997 in the County Court, at Mildura, you were convicted of sexual offences with children and sentenced to two years' imprisonment wholly suspended for two years and fined $2000. The offending occurred between 1990 and 1992 when you were aged between 15 and 17 years. You were sentenced as an adult. The learned sentencing judge accepted your misconduct, while very serious, was the immature sexual experimentation of a child.
15You were born in June 1974. You were 39 years old when you offended. You are now 47.
16Your personal circumstances are set out in the report of Simon Candlish, psychologist.
17You are the youngest of three children and grew up on the family farm in the Wimmera Wheatbelt. You reported a happy home life. You went to local schools, until year 10, when you left home to attend a regional technical school.
18After you completed year 12 you returned home and worked on the family farm for three years. You then completed a four-year cabinetmaking apprenticeship and then, for nine years, you worked for a major hardware retailer.
19Your parents were good, God-fearing people. Their church was a large part of your family life. When your mother died you went home to help your father on the farm and stayed for several months. Since, you have worked as a labourer, farmhand, truck driver and forklift operator.
20Ms Tranter was your first and only girlfriend.
21In relation to your offending, you told Mr Candlish that she nodded at the start, which you took as her consent. Towards the end you made a mistake. You said, 'I did it when she didn't want it. I don't know why I did that. It was a stupid thing to do'. You said you have always valued and respected women and you are sorry for the pain and hurt you have caused her. You were embarrassed when talking about your prior convictions.
22You are a social drinker and have never used illicit drugs or misused prescription drugs. You have no history of mental illness.
23Mr Candlish assessed you as a low risk of sexual reoffending. In his opinion you do not require treatment or supervision.
24I have read letters from former employers, a former schoolteacher, family and church friends, your father and sister and her husband.
25Historical references describe you as a reliable, hardworking young person who had been a willing and cooperative school student and a quiet boy.
26A recent workmate described you as 'nice, friendly, easy to get along with'. You have always been active in your church community. People who share your Christian faith describe you as helpful to others, respectful, and hardworking. They have seen the stress and anxiety you have suffered for four years awaiting the outcome of these charges and have heard you express remorse for the harm you have caused. Your sister, her husband, and your father describe you as caring, hardworking and honest.
27Your counsel acknowledged every rape is serious. He submitted your crime, considering it was a single, short episode which lacked typical aggravating features such as premeditation or violence, is a low-range example of the offence.
28He also submitted, relying on Mr Candlish's opinions, you are a low risk of sexual reoffending and I should be satisfied you do not pose a risk to the sexual safety of the community.
29He acknowledged by reason of your prior convictions you are to be sentenced as a serious sex offender. He submitted because you are a low risk of sexual reoffending, protection of the community requires less weight and a disproportionate sentence is not required to meet that objective.
30He submitted delay is relevant for the anxiety of waiting for your trial since you were charged and for your progress towards your rehabilitation since you offended.
31Mr Cordy, who appeared for the prosecution, submitted because rape is a very serious offence, denunciation and general deterrence are important sentencing considerations.
32He submitted your crime was aggravated by the vulnerability of Ms Tranter, who was recovering from major surgery, and your breach of her trust as her intimate partner. He submitted your crime has had a significant, deep and lasting impact on her.
33He acknowledged because you had no recent convictions before your offending and have no convictions subsequent, specific deterrence is of lesser weight.
34He accepted you are a low risk of reoffending and your prospects of rehabilitation are good.
35While you are to be sentenced as a serious sexual offender, he did not urge the imposition of a disproportionate sentence. He made an application for a Sex Offenders Registration order but did not challenge Mr Candlish's opinions and conceded the test is a high one.
36As the maximum penalty of 25 years' imprisonment indicates, rape must always be regarded as a very serious offence.[3]
[3] DPP v Lian [2019] VSCA 75 [52].
37The crime of rape encompasses a wide range of criminal culpability.[4] You ignored your partner's request, while you were having sexual intercourse with her, to stop, and stopped only when she pushed you away.
[4] R v Simon [2010] VSCA 66 [60] (per Bongiorno JA).
38While Ms Tranter was taking medication after recent surgery, when she went home with you, as she told the jury, she was not affected by her medication or alcohol. Accordingly, I am not satisfied you took advantage of her in any significantly aggravating way.[5]
[5] cf Hasan v The Queen (2010) 31 VR 28 [37].
39There is no rule that a rape committed by an intimate partner is intrinsically more or less serious than one committed by a stranger.[6] It may be an aggravating feature where there is an abuse of some special knowledge and/or trust.[7] I am not satisfied this is such a case.
[6] R v Mason [2001] VSCA 62 [7].
[7] R v Banting [2006] NSWCCA 53 [16]-[18].
40Your offending was brief and without aggression or violence.[8] I accept your crime is at the lower end of seriousness for an offence of this kind.
[8] Jurj v The Queen [2016] VSCA 57 [80].
41Ms Tranter has significant psychological and psychiatric issues. Your crime has contributed to her problems and I must take into account the harm you have caused her.
42There are factors which will moderate the sentence I will impose.
43I regard the very lengthy delay in laying the charges, and the trial, as an important mitigating factor in your case.[9] The delay was not attributable to you. There is an unfairness to you that the charge was hanging over your head for four years and caused you considerable anxiety.[10] As well, for seven years since you offended you have substantially progressed your rehabilitation.[11]
[9] Thomas [2019] VSCA 223 [66].
[10] R v Njikodjevic [2004] VSCA 222 [22].
[11] R v Merrett (2007) 14 VR 392 [36]-[39].
44I also take into account incarceration has been difficult for you as a first-time prisoner and the conditions of your confinement are harder while the public health pandemic persists.
45I must also consider your rehabilitation.
46I accept Mr Candlish's opinions, based on comprehensive testing and experienced clinical judgment, that you are a low risk of sexual reoffending.
47Considering your prior offending occurred more than 30 years before this offending, when you were a child, you have not reoffended in seven years since, you have no mental illness or psychosexual disorder, you have shown insight into your offending, you have a good work history and you have a strong network of supportive family and friends, I assess your prospects of rehabilitation as excellent.
48To mitigate your punishment and to give you the opportunity to advance your ongoing rehabilitation in the community I will impose a shorter than usual non-parole period.
49Because you have previously been sentenced to a term of imprisonment for sexual offences you are to be sentenced as a serious sexual offender.[12] That fact must be entered in the court record,[13] and I must regard the protection of the community as the principal sentencing purpose.[14] I am satisfied because you are a low risk of sexual reoffending the sentence I impose need not be disproportionate to the gravity of your offence.[15]
[12] Sentencing Act 1991 (Vic) s 6B(2).
[13] Sentencing Act 1991 (Vic) s 6F(1).
[14] Sentencing Act 1991 (Vic) s 6D(a).
[15] Sentencing Act 1991 (Vic) s 6D(b).
50Mr Moss, by this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to protection of the community and to your rehabilitation.
51Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of rape, I sentence you to five years' imprisonment. I fix a minimum non-parole period of two years and six months.
52I declare you have served 77 days of your sentence by way of pre-sentence detention.
53Rape is a class 3 offence under the Sex Offenders Registration Act. Because you committed the offence as a serious sexual offender, I may make a Sex Offender Registration order. It is discretionary. I can only make the order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons.[16] Because I am satisfied you are a low risk of reoffending, I have decided a registration order should not be made.
[16] Sentencing Act 1991 (Vic) s 11(3).
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