Director of Public Prosecutions v Mush

[2018] VCC 1509

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01538

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICK MUSH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2018
CASE MAY BE CITED AS:	DPP v Mush
MEDIUM NEUTRAL CITATION:	[2018] VCC 1509

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Office of Public Prosecutions
For the Accused	Ms K. Blair	Stary Norton Halphen

HIS HONOUR:

1Almost 33 years ago, late in the evening of 22 November 1985, you, Mick Mush, then known as Michael Dimitrovski, were prowling around the waterfront area of Geelong.  At the age of 23, you had already a bad criminal record for breaking into houses. 

2On this Friday evening, the victim had come home from a long day at work.  She had eaten, spoken on the phone to her daughter, listened to some music, and then around 10.40 she got into bed.  She went straight to sleep.  She should have woken the next morning and gone on to enjoy the weekend and many, many more days and weekends thereafter.

3It did not work out that way.  Rather, what happened was that you, Mick Mush, broke into her apartment, coming through the bathroom window.  The victim awoke with the noises that you made.  While she was lying on her bed and before she could move, you grabbed her from behind and threw her off the bed, causing her to fall on the floor.  She started screaming and calling for help.

4You then stood over the victim, demanding that she be quiet and, falsely as it turned out, assuring her that you did not want to hurt her.  She endeavoured to free herself, kicking out at you.  You then grabbed her head and started to bang it into the floor.  The more she struggled, the more violent you became.  You punched her, causing her significant pain.  No doubt in utter fear, she continued to scream. 

5You then, in a cunning attempt to stop her screaming, said, "I don't want to hurt you, I just want your money."  She told you to take her money and go.  You escalated things, saying to her to, "Be quiet or I'll kill you.  I've got a knife."  At this time, you placed a cold metal type object against her neck and, understandably, she believed that you did have a knife.  You then dragged the victim onto her feet and told her again to be quiet and she would not be hurt.  You then asked her to show you where she kept her stockings.  She endeavoured to tell you where her stockings were.  Your response was to strike her across the face.

6She then went to her wardrobe and got you a pair of stockings.  You then wrapped the stockings around her head, through her mouth, preventing her from screaming.  You then got a second pair and did the same thing.  However, as your attack continued, the stockings were not just to prevent her screaming, you also used them to physically dominate her by holding the stocking and banging her head downwards if she did not do what you wanted.  She was quickly rendered helpless and you knew it.  Indeed, you exploited it. 

7With the stockings in place, you pushed her to the end of the bed and took off her nightie and forced her to lie on the bed.  You began to touch and grope her all over her body.  She bravely continued to kick out at you, trying to prevent you touching her.  You responded by using your knees to pin her down.  Any attempt she made to remove the stockings resulted in you slapping her to the face. 

8Despite the stocking being in her mouth, she was able at this point to remind you that you said you only wanted money and she pleaded with you to take her money and go.  That had no effect on you.  Rather, what was quite plain as to your intention was then made more explicit.  You asked her what her name was and how old she was.  She gave you a false name and said she as 44 years old.  In a contemptuous response, you said that "you didn't know she was so good and she wasn't bad for an old lady."

9You then tormented her, saying if she was quiet you might not do anything to her.  However, you had by this stage taken off your pants and were naked from the waist down.  Your vile intent, which I conclude beyond reasonable doubt, you had from the outset when you came across the victim in her bed was thereafter acted upon as you raped and indecently assaulted the victim with great violence and with complete disregard for her as another human being.

10You pinned her down with one hand on her throat and you started to lick her genitals.  When she said in an obvious understatement, but said no doubt to get you to stop, that she was not enjoying what you were doing, you responded by hitting her around the head. 

11You then turned her over onto her stomach, and in what developed as a particular perverted but repeated conduct, you endeavoured to stick your fingers in her anus.  She screamed in agony.  Whenever she screamed, you hit her.  She continuously begged you to stop.  You then started to lick her anal area.  Throughout this time, you were gripping her stockings, giving you control over her.  You then tightened your grip on her stocking, causing her to have trouble breathing. 

12You then made the complainant lie on her back, telling her to open her legs, and for her to put your penis into her vagina.  Knowing that she had no choice and that she would be subject to more violence if she did not comply, she put your penis into her vagina and you penetrated her in this dreadful rape.  After a short time, you demanded that she gets on top of you, and again fearful as to her safety, she obeyed.  Again, you penetrated her vagina, raping her. 

13At one point, you demanded that she put her finger in your anus, which she refused.  Then in another contemptuous act which is revealing of you satisfying your own desires while she suffered, you made her get off you so you could have a cigarette.  While having a cigarette you told the victim that she would be killed if she said anything, that there was no way she could escape, and that you had many brothers that would come after her. 

14This was cruel, chilling and threatening behaviour, making what you were physically doing to her, which itself was so obviously abhorrent enough, just that much worse.  After your cigarette you made her lie on her front and you put your finger into her anus.  The victim screamed in agony.  You took your finger out and, for reasons only understood by you, you licked your finger.  You then told her that you were going to rape her by putting your penis in her anus.

15She pleaded with you not to as she had recently undergone surgery in the abdominal region for cancer.  This had no effect upon you.  Indeed, in a kind of window into your character, you responded to her plea with, "Don't worry, if what I've done hasn't killed you, nothing will." 

16You then asked the victim for Vaseline and when she told you she did not have any, you head-butted her to the back of her head.  She was crying.  You then told her to perform oral sex on you, which she felt compelled to do.  But each time you felt her teeth on your penis you would hit her on the top of the head.  While this oral sex was occurring, you forcibly inserted your fingers into her vagina, causing pain to her.  She was continually crying hysterically, saying, "Stop", but it had no impact on you. 

17Indeed, when she told you that she could not do anymore, you then directed her back onto the bed and turned her over.  You put your fingers inside her anus.  You then inserted your penis into her vagina from behind, raping her in this way.  You then had her turn over onto her back and you inserted your penis into her vagina, while on top of her, telling her, "That you were going to do this until I blow.  Once I've done that, I'll go." 

18Thus, you continued to rape her for what seemed to her a long time until you ejaculated inside her vagina.  Throughout this time, you insisting that she insert her fingers into your anus.  Once you had ejaculated, you got up and asked her where her money was.  She indicated where her wallet was and her handbag, in the lounge room.  You went to the lounge room and took $170.  You returned, telling her again in a chilling manner that she was lying about her name, as you had looked on her driver's license. 

19Then as you were about to leave, you grabbed her with the stocking, yanking it with such force that you pulled hair out.  After waiting ten minutes, the victim was able to make contact with a friend, who she told that she had been "bashed and raped for hours."  In other words, her first words concisely describe this brutal and lengthy ordeal. 

20She was taken to the Geelong Hospital, where the examination revealed that she had sustained a cracked left cheekbone, as well as friction burns and soreness where the stocking had been.  No doubt there was other pain and soreness from the hits and punches.  

21Swabs were taken and forwarded to the forensic services centre for examination.  At that point in time, 33 years ago, the technology was such that the spermatozoa that you had left could not be analysed so as to identify the offender's DNA.  In 2014, further analysis of the swabs identified the DNA profile of the spermatozoa as matching your DNA profile. 

22Ultimately, you were arrested on 8 December 2016.  You were remanded in custody as bail was refused by a magistrate.  You were later granted bail by a Supreme Court judge on 8 March 2017.  A committal was conducted on
2 August 2017, in which experts, but no other witnesses, were cross-examined.  Following case management in the County Court, a trial was listed to commence on 26 February 2018. 

23On 28 February 2018, you indicated a plea of guilty to a revised indictment.  On 1 March 2018, your bail was revoked.  The plea hearing was adjourned so your solicitor's could secure material and prepare your plea.  The plea remained in the list of cases in Geelong but was not reached or heard in the circuits that followed.  As a consequence, the matter was listed for a fixed date of
6 September 2018 for the plea to be heard and it proceeded on that day.

24The indictment that you pleaded guilty to contains seven charges covering the conduct that I have just outlined.  The seven charges were one charge of burglary, where the intent was to commit an offence involving an assault to a person therein; one charge of assault causing bodily harm, causing actual bodily harm; three charges of an indecent assault with aggravating circumstances; two charges of rape with aggravating circumstances. 

25The aggravating circumstances were the significant personal violence surround the sexual acts.  Two of the charges of indecent assault with aggravating circumstances were representative charges encompassing, in each case, two occasions of that offence.  The conduct involved was the licking of the genital area and the digital penetration of the victim's anus.

26The first charge of rape with aggravating circumstances was also a representative charge, encompassing four separate occasions of penile penetration of the victim's vagina.  I will return back to the fact that a number of the charges are representative charges. 

27It should be understood that the offences you have pleaded guilty to are almost, in each case, no longer described now as they were in 1985.  In other words, the offence of aggravated rape is now incorporated into the offence of rape.  Likewise, aggravated indecent assault is incorporated into indecent assault or, as it is currently known, sexual assault.  The crime of assault, causing actual bodily harm, is now known at intentionally cause injury.  The maximum terms of imprisonment in respect of the offences in 1985 are similar but not exactly the same as the current maximum terms. 

28Thus, aggravated rape had a maximum term of 20 years; the maximum term now for rape is 25 years' imprisonment.  Aggravated indecent assault had a maximum term of ten years' imprisonment; the maximum term of indecent assault or sexual assault now is ten years' imprisonment.  Assault causing bodily harm has a maximum term of five years' imprisonment; the maximum term of intentionally cause injury is ten years' imprisonment.  Burglary had a maximum term of 14 years' imprisonment in 1985; the maximum term for burglary now is ten years.  However, there is a newer offence of aggravated burglary, where the maximum term is 25 years' imprisonment.  But the important thing is that I must consider the maximum terms for the offences that applied at the time you committed these crimes. 

29As required by the provisions of the Sentencing Act, I must assess the gravity of your offending, as well as your moral culpability. 

30I will defer that assessment for a moment because I must take into account the impact on the victim of your abhorrent criminality.  The impact of your crimes on the victim is also a factor to be considered in the assessment of the seriousness of your crime and your moral culpability.

31The victim impact statement prepared by the victim is a compelling document, which I have read and reread.  Before continuing and referring to it, I make clear that I have considered it and factored it into the instinctive synthesis in a measured way and I have ensured that I have not been overwhelmed by the impact on the victim or, indeed, by the horrendous circumstances of this offending. 

32What needs to be understood is what the victim, in very brief terms, described of her life and how she felt before your attack.  As noted, she operated a business and she said that she was always "out there in the work that I did.  I would meet really interesting people and didn't have any problems coping with life."  What she said was that your offending took this away for her.  She said the offending "stopped me from being me." 

33The victim describes that, in effect, the overwhelming feeling she had from the offending was fear.  She said that after the attack, fear has had the biggest and most ongoing impact on her, often paralysing her in her daily life suddenly or out of the blue.  She said that fear was all-encompassing.  As aspect of the impact on her and her fear was her inability to cope around men.  The extent of this was very considerable.  Her son was in the air force and she spoke of how she found that she was in fear when he came back and was around.  This affected an important relationship. 

34Her difficulty and hypervigilance around men including not going into shops where there was a man, making sure that she knew her surrounds; she would not sit her back to a door and, to this day, if someone walks up behind her, she can, to use her words, "crumble."  She cannot be out late at night and if she is, she finds it hard to cope and it takes ages to recover again. 

35When looking back, she says for the first two years after the attack, she does not believe she left the house at all.  Her health suffered significantly.  In her work over the years, she employed mostly females and dealt with female customers because she did not want to face men.  If a man came into the business, the staff knew not to let them near the victim.  She says, with insight about this, "The sad part was that I knew many of these men were really nice people but I couldn't control it, I would still react to them." 

36She said, to that point in her life before the attack, all the men in her life had been kind.  The attack by you upon her, she describes in this way, "was dirty and so far beneath anything I was used to."  She said, "The actions of you were not in my world and they shattered it." 

37As mentioned, her health deteriorated and she was seen by her family as well with deteriorated health and changes in her personality.  She had little energy.  She now recognises that the symptoms she had would be seen at post-traumatic stress disorder, but that was not as well recognised or understood at the time and she had great difficulty seeking or getting medical or other assistance.  She notes, in my view, with great insight that, "If it had been nowadays, I could have gotten more help." 

38When the police advised her that you had been arrested, she felt relief, but the symptoms and her fear did not ease.  She concludes by saying, "It may have taken a while but it's nice to know these people get caught and are stopped." 

39The adverse impact of your crimes on the victim has been very considerable, indeed enduring, for her whole life since it happened.  I cannot and will not ignore that.  But, as I said, it does not overwhelm the just approach I must take to sentencing you. 

40Another matter connected to my assessment of the gravity of the crimes, as well as being a matter independently important in my understanding of you and your prospects, is your troubling and considerable criminal past.  In respect of my assessment of the gravity of the crimes, I have considered your crimes prior to 22 November 1985. 

41Your entire criminal history is relevant to my understanding of who you are, your character, your prospects and the risks you present.  However, I make clear that you cannot be and you are not here re-punished for your prior and subsequent crimes. 

42As indicated earlier, you had a concerning criminal record prior to committing these grievous crimes.  Those crimes saw you dealt with in the Children's Court and given terms of detention in the Youth Training Centre.  Of more relevance was that in 1979 you were before the Supreme Court for 11 charges of burglary and criminal damage and sentenced to two years detention in the Youth Training Centre.

43Then, although still a teenager, you received sentences of imprisonment for violent offences in 1980, 1981 and then a lengthier sentence of imprisonment in December 1982 for four burglary offences and possession of house-breaking implements.  On release, you were dealt with in June 1983 where you again received a sentence of six months imprisonment for offences of violence. 

44This is not a precise catalogue of all your crimes prior to you committing the rape offences, but rather a summary of them, that indicates that by the time of the rape and other offences on 22 November 1985, you had a propensity for violence and breaking into premises.  The seriousness of your crimes saw the court sentence you, as a very young man, to terms of youth detention and then imprisonment. 

45However, no lessons were learnt and even these sentences did not deter you or cause you to reform; you got worse. 

46In my view, your criminal history leading up to your offending adds to the seriousness or my assessment of the gravity of your offending in November 1985.  Those matters also cast light on the weight to be given to your youth at the time of these aggravated rapes and other offences committed upon this victim.

47What is meant by that is although you were a young offender, nonetheless by the age of 23, you had already committed many offences and had been sent to Youth Training Centre and to prison, none of which had the effect of deterring you from further offending.  The weight that I would otherwise give to youth is significantly moderated by reason of the grave seriousness of these offences and your bad history to that point.  I will return to this point when discussing the purposes for sentencing, as your youth at the time is not entirely irrelevant, rather the mitigatory weight is to be lessened because of your past offending to that point. 

48Unfortunately, as has been made clear enough, you were not detected following your attack on the victim in this case.  You remained at liberty and what occurred thereafter was some frightening, violent and sexual offending in the next decade.  Following these crimes in November 1985, you continued to commit crimes and were before the court in respect of unlawful assaults, burglary, failing to answer bail and wilfully damaging property.  Ultimately, on 17 November 1986, you were sentenced a term of three months' imprisonment.  Your next appearance was in the Supreme Court, where you were convicted of manslaughter after trial.  The circumstances were, in very brief terms, that late in the evening of 20 August 1986, the deceased was in his rooming house in Pakington Street, Geelong West.  A co-accused of yours had, in the days before the deceased was killed, become involved in the sale of a black and white television set to another man. 

49The deceased showed some concern over the sale of this television set, in particular as to whether it was stolen.  Your co-accused blamed the deceased for calling the police and was angry about it.  In the argument surrounding the death of the deceased, your co-accused was heard to say that he had his mate with him to bash the deceased; that mate was you. 

50The deceased was brutally assaulted in what must have involved stomping on his head.  You were arrested on 6 September 1986.  A pair of shoes found at your home where you lived with your mother at the time had the same pattern on its sole that was found embedded on the deceased's body, thus implicating you in kicking and stomping the deceased.  Also you had the deceased's blood on the bottom of your jeans.  You were charged with murder and ultimately convicted of manslaughter. 

51The sentence imposed by the Supreme Court was three years' and six months' imprisonment, with a minimum term of two years.  And given the operation at that time of remissions, you were paroled on 25 May 1988.  Within days of your release on parole, it must have been that you committed another serious offence.

52Thus, on 1 September 1988, you were before the Geelong Magistrates' Court, where you were convicted of two charges of an indecent assault and sentenced to 12 months' imprisonment.  From the sentence imposed in the later offence of rape it is clear that these indecent assaults were digital penetrations of a young woman which, at that time, were charged as an indecent assault, not rape.  Thereafter, you were again before the Magistrates' Court regularly for driving offences and resisting the police that, at the time, were there to arrest you. 

53A more serious conviction was on 19 December 1995 when you were found guilty by a jury of a charge of rape. The rape occurred on 7 January 1995.  You were guilty with another offender.  The circumstances of that rape were that you had been drinking heavily at a nightclub in Geelong.  Given your level of intoxication, you were asked to leave.  You remained around the premises, unsuccessfully endeavouring to be re-admitted. 

54Around six to 6.30 am, the victim of the rape emerged from the nightclub and started walking home alone.  You approached her and asked if she wish to join with you or accompany you to your co-accused's car, ostensibly to smoke marijuana.  She was driven to a vacant house that your co-accused owned in Geelong West. 

55At the time, the victim was out of sorts, having been ejected from her premises by her boyfriend.  She as significantly affected by alcohol.  She had no money and no place to stay and that is why she went with you and your co-accused. 

56When she arrived at the unfurnished premises, she was reluctant but went inside.  When shortly after she went to leave, she was grabbed and her clothes removed from the lower part of her body.  You then inserted two fingers into her vagina.  Shortly after, she pretended to need to go to the toilet, was able to grab some, but not all, of her clothing and she escaped. 

57The jury found you guilty of digital rape and your co-accused guilty as complicit in the act.  At the time of sentencing, the County Court judge noted that you had 46 prior convictions from 12 appearance between October 1979 and May 1994.  You were sentenced by the County Court judge to three years with a non-parole period of 18 months.  Your co-accused received 18 months' imprisonment with a non-parole period of nine months. 

58After your release from prison from this sentence, you were again before the courts in 1999 for driving offences and using a telephone to harass.  You received a community corrections order and later, a suspended term of imprisonment.  Thereafter, you were not before the courts again until May 2015, when you were convicted of making a threat to kill and fined $500.  I will say more of this gap in your offending, which was a matter given emphasis in this plea by your counsel, Ms Blair. 

59To return to the assessment of the gravity of your offending and your moral culpability.  Having described the disturbing facts and circumstances of this horrific ordeal, it simply follows that on any measure your offending on
22 November 1985 was towards the upper end of the gravity for the offences you committed.  It is these types of crimes that send a chill through the hearts of ordinary members of our community. 

60Every woman and, of course, the victim here is entitled to feel safe in their own home and in their own bed.  To break into a private house and subject a woman to brutal violence, chilling threats, degradation, and the violation of her bodily integrity in almost as many ways as is possible, and for as long as it took you to obtain your perverse sexual gratification only has to be said for the gravity of your offending to be exposed. 

61This was a rape and sexual assault that sought to dominate.  There was not an iota of human feeling displayed for the victim.  Your conduct reveals a very dark side of your character.  I could continue to describe your conduct using many terms of condemnation, but suffice to say this is the sort of behaviour that bewilders ordinary members of our community.  It is sadly well into the upper echelons for these crimes.  It has a corrosive and degrading impact on our society that within our society these things could be done.

62While you moved on, unfortunately, for a number of other victims, to commit other grave crimes that I have outlined in the decade that followed, and you did your terms of imprisonment and then returned to live with your mother in Geelong, the victim simply endured a more diminished life than she would have had had you not broken into her apartment and raped and assaulted her as you did. 

63From the outset, you created great fear, telling her that you had a weapon and that she would be killed and that you had brothers.  You also met her pleas and begging for you to stop with false and cruel words.  Even with your lack of empathy, you well knew what you were doing was profoundly wrong and harmful but you kept going.  There can be no other conclusion but that your moral culpability is very high. 

64I will elaborate just prior to announcing the terms of your sentence on the sentencing purposes that are paramount in this matter.  But at this point, given that I assess the seriousness of your offending as very grave, indeed to the upper end of the spectrum, and that your moral culpability is high and not moderated by any personal attributes such as mental illness, it must be that having committed these crimes, you must now meet the consequences or your just deserts, being a very stern and lengthy term of imprisonment.

65As to your personal circumstances, you have just turned 56 years old.  You are a single man.  As I understand it, you have never been in any substantial relationship.  Apart from periods of time of imprisonment, you have lived with your mother in the Geelong are.  You were raised in Geelong.  Sadly, your older brother died when you were only four years old, he was just six.  Understandably, this had a deep impact on your family. 

66However, more sadness was to come, when two years later your father died in a motor vehicle accident.  Thus your mother became a single mother consumed with grief.  She had a limited grasp of English and could only secure unskilled work.  She received a small pension and had to work to support herself and you.  Her family assisted in the sense that her younger brother moved from New South Wales to Geelong to support his sister and you.  He has remained very close to his sister and, over time, to you.  He gave evidence on your plea as to the changes he has seen in you in recent times, coinciding with when you were no longer offending. 

67As a consequence of a difficult upbringing, you were undisciplined and had limited benefit from education.  You left school in Year 9 and worked as a French polisher and a builder's labourer and later at the Ford assembly line.  In recent times, you had been on a disability support pension.  It was said that you mixed in the wrong crowd in your youth and became involved in the sort of offending that I have outlined.

68Notwithstanding your offending, your mother has always been there in support.  What is important to understand about your life from the end of the 1990s is that your mental health deteriorated, and during your last term of imprisonment for the rape in 1995, you complained of hearing voices and becoming paranoid.  When you were released, you were seen by the mental health clinicians at Barwon Mental Health. 

69In the course of your plea, I was provided with some of your medical records.  Your solicitors decided not to have you and/or your medical records examined and analysed by an expert forensic psychiatrist.  Therefore, I am a little unaided or unguided as to much of what is set out in your records as tendered by your counsel. 

70The first notes in your medical records in 1997 include the following the under the heading of "Thought content including delusions", and it says, "Vague descriptions of voices inside and outside of head of a derogatory nature.  Not sure if it's true or not.  Doesn't see anything unusual.  No special powers.  Wanting to know if he can get pension if unwell." 

71The next note is from 2004 and it refers to your then alcohol and polysubstance abuse.  The note records you report being depressed, hearing voices and think others such as your neighbours were making derogatory remarks, which led to actual confrontations. 

72The next document is a letter dated 26 October 2005 from Dr McKenzie, then the registrar of the Geelong West mental health team.  She was writing to a colleague, Dr Davies, at a methadone clinic where you attended in Geelong West to deal with your heroine abuse or addiction.  Dr McKenzie wrote that you had not been previously assessed and it was thought that you had an antisocial personality disorder, ADHD and possible paranoid psychosis, all complicated by polysubstance abuse. 

73You were describe as having a three month deterioration in mood, with persistent depression, poor sleep, appetite with weight loss, decreased energy, motivation, concentration and libido.  Dr McKenzie went on to note that you had been unemployed for years and remained socially isolated, relying on your mother for company.  She noted you had been trialled on a number of anti-psychotics, including olanzapine, but that you had ceased that two weeks ago. 

74On examination, you presented as co-operative, with no aggression or hostility.  You were mildly anxious and had no perceptional disorder or thought disorder.  You had said that you had long-standing persecutory ideas but no delusions.  She noted that you appeared to be experiencing a depressive episode on the background of significant personality disturbance, antisocial and probably paranoia. 

75On the positive side, she noted you had been abstinent from alcohol and illicit drugs for some time now.  I note that your uncle, in his evidence, described how you had gone through some detoxification and rehabilitation in respect of alcohol abuse. 

76At the end of September 2006, you deteriorated and were hospitalised for a fortnight in Geelong.  The medical records included a discharge summary.  It stated that your primary diagnosis was schizophrenia.  It seems the reason for your hospitalisation was that your mother had contacted the mental health services because of your aggressive and assaultive behaviour towards her.

77It was said that your aggressive behaviour was in the context of frustration, as you believed that neighbours knew about your mental health problems and yet your mother would not support you in taking out intervention orders against them. 

78The note went on, "Michael has partial insight into his illness but does not accept that his concerns about his neighbours are symptoms, that is paranoid thinking.  He acknowledges that he has voices but feels he has good control over these."  It went on, "Michael has been non-compliant with olanzapine for one week.  He states that the medication causes restlessness and agitation." 

79It further went on that you had described that you had inability after returning from overseas - it seems prior to this you had had some time overseas.  It finished with saying you also stated that you would not take your anger out on your mother for seeking help, that you were ware that "she's got your best interests at heart." 

80The last note is January 2009.  It appears as a repeat of the sort of conduct and paranoia that was described in the discharge report of 2006.  It says, "Michael is a 48-year-old single man who suffers from a schizoaffective disorder.  The services contacted by his mother, with whom he lives, were reporting increasing aggression and assaultive behaviour."  It repeated that you were frustrated that you would not have her support in taking intervention orders out against your mother.  In concluded that you are now treated with depo medication, that is by injection, due to your poor compliance with oral medications. 

81The only other medical report tendered in evidence was a letter dated 3 September 2018 from Dr Fitzgerald, your treating general practitioner in the community, who has treated you for the last two years.  He wrote that you attended regularly for treatment for your schizophrenia by way of depo antipsychotic injections. 

82He said that at the time you attended, the schizophrenia was stable and you showed no signs of psychosis.  He noted that you were compliant with having your injected medication.  He said that due to some report of hearing voices in November 2017, your medication was altered in consultation with a consultant community mental health psychiatrist.  He added that he thought that though your schizophrenia was stable, your mental health would be challenged by incarceration. 

83What can be said from the material presented on the plea is that you have had, for over a decade, a mental illness, likely schizophrenia, requiring depo medication.  You are stable and have sufficient insight to know you must be medicated.  The only problems seem to be paranoia and persecutory beliefs or delusions, particular about what you think your neighbours are saying about you.  I was told that this was the context for your last offending in 2015 when you were fined for making a threat to kill.  Although the fine was small, the fact that you threatened to kill, given your violent past and your mental illness, it remains a recent concerning criminal conviction. 

84It was not put that your mental illness was particular relevant to any sentencing purposes, that is to your moral culpability, it was not said that this was diminished in any way and you remain a suitable vehicle for deterrence.  The only point made was that being mentally ill in prison is likely to be more burdensome to you. 

85As to any evidence of this, while you have recently been on remand, I was informed you are medicated appropriately and are coping, save for the understandable anxiety as to your ultimate fate and anxiety as to how your mother is coping without you.  Thus, I will to a small degree moderate your sentence because your mental illness is likely to make prison more onerous. 

86In addition, I accept there is mitigatory weight in the fact that you will be worried about how your mother is coping and about her health.  She is now 84 with cardiac, lower limb and eye problems.  She is also depressed because you are in prison.  She has only her brother for support.  Your assistance with transport, language problems and other important aspects of her life were significant. 

87You were anxious that you may be imprisoned for such a time that you will never see her alive outside the prison.  I understand that she communicates with you and hopes she can be transferred to the nearby Barwon Prison to make visits easier.  I have read the letter from your mother and the detailed letter from her long-term general practitioner about her health. 

88I have mentioned the support provided by your uncle.  He gave evidence and emphasised the great improvement once you gave up abusing alcohol.  He spoke of the help you give to your mother and how, in recent time, you have shown an interest in her and him as well.  He stressed how reliant your mother was on you and how her health was deteriorating. 

89You have pleaded guilty but your plea of guilty was not early, coming as the trial was about to commence.  It seems you received advice following your counsel's conference with the defence DNA expert.  The plea of guilty is important, as the victim was never cross-examined at committal or trial.  The relief for her of not having to relive this ordeal is a matter of significant mitigatory value.  The plea of guilty is you finally acknowledging what you knew and carried for nearly four decades. 

90I take it, that is your plea, as an expression of your remorse.  There were no other matters or evidence put to me of any other expressions of remorse.  As a consequence of your plea of guilty and your prior sexual offending, which was punished by terms of imprisonment, you are to be declared a serious sex offender for all sex offences on the indictment, being Charges 3 to 7. 

91This means you must be dealt with differently to other offenders.  Protection of the community must be the primary sentencing consideration.  To achieve this sentencing purpose, I am authorised to impose a disproportionate sentence.  The prosecution do not submit a disproportionate sentence is required to meet the sentencing purpose of protection of the community.

92In short, it is my view that the sentencing discretion I have for all the offences is sufficient or allows sufficient scope to protect the community by incapacitation via incarceration that is imposed via a proportionate sentence. 

93The final matter arising from the serious offender provisions has practical implications.  I must sentence you differently to other offenders, in that I must order the terms of imprisonment to be cumulative unless I otherwise order.  That is what the statute says and I cannot ignore Parliament's intent, that unlike in the past and unlike with other offenders who are not serious sexual offenders, I must not operate according to the principle of concurrency unless otherwise ordered. 

94As was said by the High Court in the decision of McL v The Queen, dealing with the provisions that operated at that time prior to the now s.6.  The High Court, in a joint judgment said:

"The need for judges not to compress sentences is especially important where the accused person is a serious sexual offender within the meaning of the provisions of the Sentencing Act. Those provisions give effect to the legislative policy that serious offenders are to be treated differently from other offenders. It has plainly intended to have more than formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of the section, scope for applying the totality principle must be more limited in cases not falling within that section."

95That principle has been endorsed in a number of Court of Appeal decisions since the High Court spoke.  With that said, I cannot completely ignore the principle of totality and order full cumulation in the circumstances where the separate crimes were committed during the one dreadful incident. 

96Notwithstanding what your counsel set out in her detailed written submission at paragraphs 4(c) - (f) or (e) - (f).  I am of the view the only application of the principle of totality relates to the multiple offences in this one episode, not your other offence in or about the mid-1980s.

97The sentencing purposes other than protection of the community that must be given significant weight are denunciation of your abhorrent crime and deterrence to you and to others.  I do not ignore your rehabilitation.  But in the face of these grave crimes and your past, your rehabilitation must yield to other sentencing purposes. 

98Your rehabilitation is not forlorn.  Your counsel emphasised the number of years you have remained more or less out of trouble and the many years since your last sexual offending.  I do not see your prospects as entirely bleak and it is hoped you can remain stable and medicated on your release after what must be years of imprisonment.  You will be significantly older and permanent reform is, for that reason, more likely. 

99My mandate is to endeavour to establish conditions that facilitate your rehabilitation.  The only tool I have is to allow for a period of potential parole.  I will set what I consider is the minimum period of incarceration that justice demands for the crimes you committed and I will fix a head sentence, keeping in mind that you may have to serve every day of the entire sentence.  The whole of the sentence I will announce shortly is, in my view, just an appropriate, a proportionate sentence to the grave crimes you committed. 

100I factored into the overall equation that your crimes were committed 33 years ago.  You were not detected due to where the DNA technology was up to at the time.  That meant that you were at liberty and for a decade you used that time to commit the dreadful crimes on other victims. 

101You are not to be re-punished, as I have said, but your conduct and character in those years after this offence means that I consider you remain a danger to the community.  Also, in simple terms, it means you cannot seek a merciful sentence on the basis of your character or circumstances at the time or after.  You must face your just deserts, as I have indicated. 

102I am mindful you were 23 at the time but your criminal history to that point means little weight attaches to your youth.  I have endeavoured to make clear that in addition to the primary sentencing purposes, the protection of the community from you, the other sentencing purposes that are, to the fore, are denunciation and deterrence. 

103My denunciation of your callous crimes has, I think, been made clear enough in my words thus far.  But denunciation must have a practical aspect in the form and length of the punishment.  The punishment for your crimes must re-assert the decent values that you attacked on that night.  The values I speak of and seek to re-assert is that women should feel safe, especially in their homes, that those that shatter this by invading their homes to rape, assault, degrade and violate them must be removed from our society for a very long time.

104The sentence must be stern enough to deter anyone who might be minded to sexually assault in any way any other member of our community. 

105On that point, it has long been recognised that the certainty of detection operates as a real deterrent.  Thus, as in this case, our community is in the debt of the dedicated scientists who have worked to develop and advance modern techniques of obtaining the DNA of offenders from the most minute biological material left at crime scenes now and in the past.  It is hoped that widespread knowledge of the more certain detection of offenders through advanced forensic procedures will ensure a more safe society. 

106The Sentencing Act requires that I pay regard to the maximum terms applicable at the time of the offending, and I have done that.  Another matter in the Sentencing Act that I must have regard to is current sentencing practices.  It is not dominant or determinative.

107The Court of Appeal, in the decision of Stalio, made clear the sentencing practices I must consider are those that are current at the time of the sentencing.  I do not ignore any information about what sentences were imposed for like offending at the time so as to achieve some aspect of equality.  I have examined some of those cases of home invasion rapes as have been provided by the prosecution and also other decisions.

108The community's views and attitudes to crimes and approaches by the courts change.  One of the cases provided to me is where the Court of Appeal concisely expresses how the law, the courts and sentencing judges adapt, listen to the community concerns and sentence accordingly.  What was said then is what the courts endeavour to do now.  The court in 1993, that is the Court of Criminal Appeal with Phillips CJ and Marks J and Hample J in The Queen v David Paul Lakeland said the following, and I need to cite at some length:

" In recent years, victims of rape have received a great deal more community support than they did in the past. This support is manifest in significant changes to the criminal code which remove the requirement of corroboration and disallow unfair denigration of persons who allege they have been raped. It is recognised that rape is a crime to which there are witnesses only in rare cases. This support is also manifest in the modern development of crisis centres, counselling services and training of officers of enforcement authorities to ensure ready receipt of complaints and their prompt investigation."

109It goes on in like manner as to support provided to those that were victims of crime, a matter brought into sharp focus by the victim in her victim impact statement.  The court went on:

" This awareness has extended to the Courts with the consequence that an even more serious view of the offence must be taken now than perhaps it has been in the past. While rape and its attendant crimes have always been regarded by the Courts as ones of great gravity, it is now necessary to consider whether more severe penalties, applied in cases of multiplicity of offences, should not be affirmed. The requirement of community support and protection for its female members, in our opinion, has not proved to have been sufficiently met. Sentences which take account of general deterrence are not only required in rape cases but are required to be of sufficient severity to be effective as a deterrence."

110The court went on:

With the increased awareness, which we have mentioned, of the prevalence of rape and of its devastation of victims, the Courts must be allowed greater flexibility to do what they consider appropriate. The crime of rape, particularly when committed in circumstances like those of the present, attacks the very foundations of civilised society. A community which aspires to high standards of individual dignity, culture and enrichment of interpersonal relations, must punish severely those of its members who would grossly debase them."

111Mr Lakeland was a home invasion or burglary rape. 

112In much more recent times, the Court of Appeal has in the DPP v Avci said the following; these are the words of Maxwell P, with whom Buchanan J and Redlich J agree in saying that over the past decades attitudes to sexual offending have hardened.  The president said, of current times:

"Difficult though it is to generalise about community attitudes, I have little doubt that community concern about rape and like crimes and the need for salutary sentences to punish and deter are stronger than ever."

113I have considered many other sentences, both appellant decisions and first instance sentences involving home invasions from decades past, right up until the sentence imposed in the last few weeks in the County Court for a single digital rape after an aggravated burglary by a man without any prior convictions, who went to trial and was found guilty.

114Obviously though, each case is different and I must, as the High Court has made clear recently, engage in individualised sentencing so as to ensure that I punish you, the offender, Mr Mush, for the offences you committed with a just and appropriate sentence, no more and no less. 

115Three of the offences are representative of other instances of the offences.  Thus, the three charges are not isolated instances, but they are representative of the whole awful episode.  I am aware of and apply the principles to sentencing for representative charges. 

116Before announcing the sentence, I must move to another matter.  Given the offences you committed, I must give consideration as to whether you should be required to be registered and remain on the sex offenders register.  The statutory regime is complex.  It was comprehensibly explained by the prosecutor in his oral and written submissions. 

117In the end, because your offending was against an adult and within a 24 hour period, that is within the one incident, then by operation of the Act, I have a discretion as to whether you will be placed on the register.  In examining the discretion, I must be satisfied beyond reasonable doubt that you will, upon release, be a danger to the sexual safety of a member of the community 

118The prosecution contends again via analysis of the labyrinth of statutory processes that if I find you should be registered, then the period of registration is for life.  Mr Blair agreed with the prosecution's interpretation of the statute as to the discretion arising and the length of the registration if registration was imposed. 

119Ms Blair continued, given your long period of not offending at all and even longer since any sexual offending, it could not be said beyond reasonable doubt that you will present as a risk to the sexual safety of a member of the community, especially given your likely advanced age on release.

120These matters are notoriously difficult to predict.  I have no expert assessments provided to me as to your risk, your psychosexual makeup or the likely trajectory of your mental health.  What I do have is what you did in November 1985, which I have outlined.  It was disturbing and extreme.  It was revealing of an inherent dangerousness. 

121Your dangerousness was again revealed unfortunately shortly after leaving prison for the manslaughter sentence, in that you digitally penetrated a young woman unknown to you.  This was repeated again not long after in the rape in 1995.  The prosecution says that without more, the current offending is well enough, is enough to persuade the court beyond reasonable doubt that you present as having the relevant risk.  The prosecution says that the later offending comprehensibly establishes your ongoing risk and proves that you are someone who will present as a sexual risk to or danger to a member of the community.

122I am mindful of the years that have passed and will pass from your last sexual offending until you are back in the community.  You will be much older and many decades will have passed since your last sexual offences.  However, the nature of your risk, what you may do, which is to brutally rape or sexually assault an unknown woman, and the risk that you would do such a thing, as you have done on three occasions in the past, is such that I am persuaded beyond reasonable doubt that you will present as a danger to the sexual safety of a member of the community on your release, and I order that you be registered and that the period of registration be life. 

123I have set out the serious offender provisions that relate to, or spoken of, the serious offender provisions that relate to cumulation.  I indicate that I will otherwise order or I will not order full cumulation.  To do would give rise to an outlier sentence and it would likely extinguish any meaningful life for you after release. 

124These matters and the principles of totality require a degree, indeed as it turns it, a significant degree of concurrency, notwithstanding the provisions of serious offender provisions of the Sentencing Act.  Doing the best I can.

125Charge 1, for committing the crime of burglary, you are sentenced to be imprisoned for three years. 

126Charge 2, for committing the crime of an assault, occasioning actual bodily harm, you are sentenced to be imprisoned for one year. 

127Charge 3, for committing the indecent assault with aggravating circumstances, being your licking of the victim's genital areas, this being a representative charge encompassing two such acts, you are sentenced to three years' imprisonment. 

128Charge 4, for committing the crime of rape with aggravating circumstances, being the penetration of the victim's vagina with your penis, this being a representative charge encompassing four occasions that this occurred, you are sentenced to be imprisonment for ten years.

129Charge 5, for committing the crime of indecent assault with aggravating circumstances, being the digital penetration of the victim's anus, this being a representative charge encompassing two such occasions, you are sentenced to be imprisoned for four years. 

130Charge 6, for committing the crime of rape with aggravating circumstances, being the oral rape, you are sentenced to be imprisoned for six years. 

131Charge 7, for committing the crime of indecent assault in aggravating circumstances, being the digital penetration of the victim's vagina, you are sentenced to be imprisoned for three years. 

132I order that one year of Charge 1, six months of Charge 2, one year Charge 3, two years of Charge 5 and three years of Charge 6 and one year of Charge 7 be cumulative upon each other and upon the base sentence of ten years that was imposed on Charge 4. 

133I am just going to pause for a moment while those around me just make sure that I do not announce a sentence that is mathematically incorrect or there is arithmetic that is incorrect.  Just - not counsel.  My staff will help me here.  Is the PSD 290 days?

134MR LIVITSANOS:  It is, Your Honour.

135HIS HONOUR:  Thank you.  Just bear with me for a moment, I am sorry. 
Mr Livitsanos and Ms Blair, in respect to Charge 6, did you record me as saying that the cumulation is three years and six months?

136MR LIVITSANOS:  No, I have got three years.

137MS BLAIR:  Three years.

138HIS HONOUR:  I apologise, it is three years and six months.  So Charge 6, the sentence was six years and three years and six months is to be cumulated.

139MR LIVITSANOS:  As Your Honour pleases.

140HIS HONOUR:  It gives a total effective sentence of 19 years and I fix a minimum of 15 years before you are eligible for parole.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 23 years with a minimum of 19.  You have been in custody at two different points and the total number of days that have been calculated is 290 days.  This figure, having been reckoned, I declare that you have already served 290 days of the sentence that I have just imposed. 

141I will ensure that this is entered into the records of the court so you are left in no doubt that you - well, the prison authorities are left in no doubt that you have served 290 days of the sentence that I have just imposed.  I declare for Charges 3, 4, 5, 6 and 7, that you are a serious sexual offender and I will ensure that this declaration is entered into the records of the court.  I declare you are eligible and are required, upon release, to register on the sex offenders register and remain on that register for the period of your life.  Is there any other orders required?

142MR LIVITSANOS:  No, there is not.  As Your Honour pleases.

143HIS HONOUR:  Thank you.  Mr Marsh has to remain here for a moment because the provisions of the sex offenders register mean that I have got to give him a document that I sign that says that I have given him a document.  And he has got to sign a document that says that he has received the document.  But Mr Marsh, it is the document that counts, which is the responsibilities and consequences that flow.  If you do not upon release register on the sex offender registration.  Someone will explain it to you, likely, as your time for release approaches. 

144Ms Blair, can you give him that document?  So he needs to take that with him, I am afraid.  I have received back from you, Mr Marsh, that you acknowledge that I have given you the notification obligations and notification of the reporting period.  What occurs is that this is provided to the Chief Commissioner of Police.  If there is nothing further, then Mr Marsh can be taken downstairs.  There is no opportunity here, Mr Marsh, to interact with those that are here to support you.  I thank counsel for their very considerable assistance in this case.  Ms Blair, it does not escape this court that some at the Bar do the hard cases.  Thank you.

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