Director of Public Prosecutions v Nguyen
[2020] VCC 348
•27 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02008
Ind: T02603313
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Thanh Phuong NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 March 2020 |
| DATE OF SENTENCE: | 27 March 2020 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 348 |
REASONS FOR SENTENCE
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Subject:Indecent Assault and rape. Separate young victims offended against on a single night in 2003. Long delay after accused failed to answer summons in 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Malobabic | Office of Public Prosecutions |
| For the Accused | Ms A Wong | VLA |
HIS HONOUR:
1 Thanh Phuong NGUYEN you have pleaded guilty to two charges on the indictment filed in this court, being one charge of indecent assault and one charge of rape.
2 You are 50 years of age, born on 18 December 1969, and have no prior or subsequent convictions.
3 The summary sets out the correct maximum penalties.
Facts
4 On Tuesday of this week, the prosecutor Ms Malobabic opened this matter to me in accordance with an agreed summary of prosecution opening for plea dated 12 March 2020. I asked and your Counsel, Ms Wong confirmed it was an agreed summary and that being so, there is no need for me to descend to the finer detail of your offending. I will sentence in accordance with the agreed facts.
5 Very briefly, on the Saturday night in question in March 2003, you had accompanied a small group of people to a nightclub. The two young women who were in that group and who you offended against had either met you for the first time that night in the case of the 17-year-old or once before in the other case. They were both plainly intoxicated on the night. 19-year-old Ms Cassandra Collins[1] was ejected from the nightclub owing to her intoxicated state. The remainder of the group which included you left as well. Ms Lily Walters[2] as she was, (now Mrs Hoddle)[3] was escorted out of the club with her arms around her friend Ms Myers (Whitney)[4] and you. You then took advantage of the situation. Firstly, by indecently assaulting the 17-year-old Lily Walters. You lay her down on the backseat of the car. You then touched her in the way described as she lay intoxicated in the car. There was a level of persistence. That indecent assault was interrupted by Cassandra Collins who had gone to the toilet and returned to the car and saw then what was happening. She told you to get off Ms Walters. You did. Ms Walters was then sick in the immediate aftermath. The car then went to a restaurant in Russell St and was parked there by the driver Mr Vu (also described as Michael). At this stage the first victim Ms Walters was asleep on the back seat. You told her friend Ms Myers and the driver Mr Vu to go inside and get a table. Ms Walters’s friend Whitney was reluctant to do so but you said you would be inside in a couple of minutes. She relented and left. When she left the vehicle, she noticed that both Ms Collins and Ms Walters were asleep in the car. You were in the back seat. You then got into the driver’s seat and drove the car away to a car park at an unknown location and there you raped Cassandra Collins as she lay in the front seat of the car. You removed some of her clothes and inserted your penis into her vagina. It hurt her. She was very drunk. It was unprotected sex. At one point, Ms Walters woke up and saw you and the other girl with their bottom garments removed.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
6 The two people who had got out of the vehicle in Russell Street had been looking for the car. The driver rang your phone but it was switched off. Ms Myers called Ms Walters’s phone at one point. You answered it and you then spoke to Mr Vu and told him that you’d been pulled over by the police and you would be back soon. Ultimately the group was reunited, and the various parties were dropped off in the manner described in the agreed opening. Ms Collins had pain in her vagina and saw that she had been bleeding into her underwear. She had bruises on her right thigh, her arms and her shin. She disclosed the offending to Ms Myers and then complained to the police. She was medically examined. You were arrested and interviewed on 4 April 2003. The agreed summary refers to the interview and says that you denied the offending. I have read that interview.
7 You undoubtedly had a memory of the night. You denied any contact with one woman but admitted that there was some touching which was consensual with the other. Once the interpreter arrived you said that there had been no sex with her but described consensual touching. In short, as the summary describes, you denied any offending.
8 You were released pending charges being laid. You failed to attend an appointment to provide a DNA sample on 4 April 2003 but a sample was ultimately obtained from you on 19 October 2004. The chronology sets out some of your movements in terms of overseas trips taken in 2003 and 2004 leading up to the DNA sample being provided on 19 October 2004. The forensic report was received by the police in September 2005. It provided strong evidence against you disclosing as it did the presence of your semen on the car seat, in Ms Collins’s underpants and inside her vagina.
9 You were charged on summons on 18 October 2005 but failed to attend the filing hearing on 15 November 2005. But for that, no doubt this matter could have been dealt with in late 2005 or more likely early 2006 had you adopted the same course of swiftly pleading guilty as you have more recently. But of course you chose not to attend Court and here we are all these years later.
10 A warrant was issued for your arrest which was only executed on 28 June 2019. You have been in custody since. The chronology that is part of Exhibit A sets out the various steps taken by the police to ascertain your whereabouts as well as the details of various overseas trips which you took.
11 So much for my short summary of the summary. That is all it is. I will sentence in accordance with the full factual summary which has been placed before me.
Impact
12 There are two victim impact statements placed before me. I am not going to set out all that they say. Nor though, am I just going to say that I take them into account and deal with the matters raised on your behalf. These statements represent the only occasion when a victim can provide detail to the Court of the impacts of your crime upon them. There is nothing at all surprising about the way your crimes have impacted upon each victim. These were two very young and vulnerable women. One was just 17 at the time, the other 19 and they were very badly used by you. Justice has been a long time coming for them. They each speak of the impacts that have flowed to them over the ensuing years.
13 Lily Hoddle (previously Lily Walters) courageously read out aloud her Victim Impact Statement. She was in year 12 when you indecently assaulted her and it derailed that critical year. Not just that year. It has had a deep impact lasting to this day. Your crime warped her view of herself and reduced her self-esteem. She felt violated because of course, she was, by you. She developed a distrust of others. She even had a sense of guilt for not being able to stop the subsequent crime against the other girl. That girl was Cassandra and she in fact was the person who intervened in your crime upon Lily. Now Lily Hoddle should have no feelings of guilt. You are the only guilty party here. She has a sense of shame and has attended a psychologist. I have only set out some of the impacts. I have regard to the entirety of the Victim Impact Statement. She has been deeply affected by your criminal act.
14 So too has Cassandra Collins. She was damaged physically, mentally and emotionally with a lessening of self-confidence and self-worth. It was a traumatic event and she did not know how to seek help. She has had feelings of anger, shame and guilt. Again, there is not the slightest reason for her to feel any guilt at all. But she does. She has become withdrawn. She quit university in that same year that you raped her. She has had issues with trust, affection and intimacy. She wishes she could just erase the memory of these events and in that way, be liberated from your crime but of course she can’t. She hopes she will receive some closure from this long-awaited instance of justice taking its course.
15 I interpose - I hope both victims can derive some closure from these proceedings.
16 The victim impact statements each make clear how your crimes have affected the lives of your victims. The impact is one of a large number of matters that I must have regard to. I do not let it swamp other considerations. Your conduct has reverberated through the course of their lives I take into account the impact of the crimes in this case. It has been long lasting and deep.
Plea in Mitigation
17 Your counsel Ms Wong had prepared a written outline of plea submissions which was marked as Exhibit 1 on the plea. She conducted an excellent and persistent plea on your behalf. She took me to your personal background in some detail. She spoke of the gains you had made in the course of the many years which had elapsed since this offending. She made submissions about the gravity of the offences and how that might be assessed as well as the relevant sentencing purposes. She conceded that there were a number of matters of aggravation. She relied upon a report from a psychologist Ms Mynard as well as two character references.
18 She relied mainly upon:
· Your early guilty plea;
· The presence of remorse;
· The absence of any criminal history either prior or subsequent;
· An increased burden upon you owing to your fears for your wife and young children as you serve the sentence which will be imposed;
· Your very good rehabilitative prospects when viewed against a backdrop of a lengthy delay where you have not re-offended in any way;
19 She suggested that there was a lower sentencing practice in existence in the relevant time frame which I ought have some regard to. She also raised some aspect of the delay in the execution of the warrant and how that might be viewed. However, she conceded the seriousness of the offending and the inevitability of a prison term and one of a dimension requiring the fixing of a non-parole period.
Prosecution
20 Ms Malobabic, who appeared on behalf of the Director of Public Prosecutions had little to say given the sensible concessions made by your counsel as to the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period. She highlighted the age disparity and the vulnerability of the victims. She accepted that the passage of time was relevant but that you had chosen not to attend at Court back in 2005. She referred me to a circular or press release from Corrections as to way in which the COVID 19 Virus was being managed. I will have that marked in the proceedings, as Exhibit D.
Background
21 I turn to your background and will do that very briefly, and that is because it is set out in detail in the written plea submissions as well as in the report of Ms Mynard. I have no reason at all not to accept the personal background placed before me. Nor is there actually anything in that background in any way explaining these offences.
22 Very briefly, you are 50 years of age born on 18 December 1969. You were born in Vietnam. You had a decent upbringing in that country. You were one of a very large family and came to Australia with other family members when 18 years of age. You are an Australian Citizen. You had been schooled in Vietnam. You have had a good employment record in this country. You have done a variety of jobs in Australia including working as a kitchen hand, waiter, chef and most recently, as a head chef. Your parents are still alive in this country. So too some siblings. Two have written a brief reference. One brother lives in America and you have other siblings who still live in Vietnam. One sibling died a number of years ago. You married in 2016 and your wife lives in Vietnam with your two young toddlers, both girls. You are worried as to her financial predicament as you had been sending money to them on a regular basis. You had planned to sponsor them to this country and of course that plan has been disrupted. You are in good health. Drugs have not been an issue. Alcohol presented some issues earlier in your life but it hasn’t been problematic in recent times. You were 33 years old at the time of these offences and were single at the time. As I said earlier, you have no prior or subsequent criminal history and you now call in aid your past good character. You understand how serious this offending was and how much impact it has had. You are held in prison up at Fulham and have not been receiving any visitors there given the distances involved. You are working in custody.
Guilty Plea
23 Let me then to turn to consider some of the submissions that have been made on your behalf. The first of those relates to your guilty plea. I will treat your plea as having been given at the earliest opportunity. That is significant. By pleading guilty, you took responsibility for this offending committed all those years ago. There is a utilitarian benefit that applies when someone pleads guilty. Giving evidence in this sort of case can be and often is traumatic. Your two victims have at least each been spared the experience of entering the witness box. You admit your guilt. Not only have they been spared that experience, the community has also been saved the time, cost and effort of a contested hearing. You must be rewarded for your early guilty plea. I must as a matter of law pass a lesser sentence than would have been imposed had you pleaded not guilty. So I take into account your early guilty plea as a matter of real significance in this case. I also take into account your level of co-operation with the police. You participated in the interview and ultimately you provided the DNA sample.
Remorse
24 A guilty plea is usually, though not always, indicative of some level of remorse. There are, in this case, other statements in the materials suggesting to me that you are actually remorseful for what you did all those years ago. Ms Mynard deals with some of your expressions of remorse and shame. I do not doubt for one moment that you are sorry that you did what you did to these two young women on that night. I don’t doubt that you regret what was terrible behaviour.
25 So I take that remorse into account in mitigation.
Mynard report
26 I am not going to set out slabs of the report of Ms Mynard. It sets out much detail of your background as well as views as to your level of functioning and personality. It comments on your remorse. It is relied upon also as demonstrating the complete absence of any problematic issues which might otherwise impede your ongoing rehabilitation, for instance long term drug use or some deep-seated and intractable mental health issues in play. That is not what exists here. Ms Wong was explicit in submitting that there were no Verdins principles engaged in this case. I accept that is so. I take into account the report in the ways asked of me including accepting, as I do, the risk assessment. I would have reached that same view independent of the formal risk assessment given the other matters I can have regard to including the delay and your conduct since.
Burden increased
27 I accept that you are worried as to your wife and children’s predicament. They are overseas. That will be tough for you and them. You have been visiting them on a yearly basis. Of course that will stop. I cannot take into account third party hardship here. It is conceded that the circumstances are not exceptional. However, I accept that your worry about them and concern as to how they will cope and the inability to see them will increase your prison burden. It is no easy business ringing them given the expense involved. I also accept that there will be a worry in your own mind as to the impact of COVID 19 in their lives as well as in your own life. As to the latter, you will not have the freedoms that you would have in a non-custodial setting, and by that I mean the ability of going where you want to go or distancing yourself from other people. You will have no real autonomy as a prisoner and we in the criminal justice system are all waiting I suspect, with bated breath as we consider the possible impacts of this global pandemic when it ultimately hits the prisons. The Court of Appeal dealt with this concept in a decision earlier this week of Brown 2020 VSCA 60. It is too early to know how this is all going to play out in the prison system. I cannot speculate as to how it will play out. It is a rapidly evolving setting. Undoubtedly it is generating stress amongst us all, including surely amongst prisoners and their families. All visits have been suspended but with the hope of having increased ability to communicate in other ways. I have that directive from Corrections raised by the Prosecution which I have marked as Exhibit D. You are in prison for the first time which must be difficult at the best of times. If I can put it his way; these are not the best of times to be there for the first time. I accept that there is in this case, for these various reasons, an increased custodial burden which I take into account.
Delay and rehabilitation
28 I turn now to the issue of delay and rehabilitation. These offences occurred many ago. Now there is a disadvantage to you in being sentenced 17 years after the offending. There is also I should say a very big disadvantage to each victim in the matter being delayed all these many years. It has prevented any sense of closure ever taking place, and they had no say in this delay. You did. Complaints were made in a timely fashion, you were arrested in a timely fashion and interviewed. We have the delay because you chose to absent yourself from Court. It really is that simple. You had been charged in a relatively timely fashion. The delay in your being charged flowed to some extent from your failure to attend the DNA appointment that had been arranged. Once charged, you have taken the decision to not attend Court. You have chosen to ignore the outstanding matters. You have not come under police notice. In the meantime, of course, you have forged a new life. Now there is no evidence of you actively avoiding apprehension. But the chronology sets out some of the steps taken by the police in an endeavour to track you down. No bank accounts for many years, no Centrelink payments. Various other enquires that yielded no return. I was told that you never got a drivers’ licence. It is puzzling that you departed and entered the country a number of times in the period without being arrested. The fact is though you could never have forgotten of the existence of this unfinished business in your life. No doubt you hoped it would never see the light of day. I do not accept for one moment that you did not understand the seriousness of the charges or the importance of the requirement to attend at Court back in 2005. You had been charged with rape. You had been served with a summons requiring you to attend at a Court. You knew how serious that was, of that I have no doubt at all. You chose not to attend and I am satisfied beyond reasonable doubt that you knew that was a serious step to take. In a way you were burying your head in the sand. But to say that I should take into account in a mitigatory sense the unfairness aspect of the failure to execute the warrant is as far as I am concerned a bridge-too-far. The police were hunting you. There may have been some procedural hiccup in terms of being flagged at the airport but they were not sitting on their hands exercising some unduly leisurely approach. You had been charged and then ducked away from your obligations to attend court. They kept looking for you. So the fact that you had travelled in the way that you did back and forth into this country cannot lead to any significant mitigation in this case. I don’t ignore it but you created the circumstances of the delay by failing to attend Court when you should have. You at every stage since had the ability to have this matter attended to by handing yourself in. You chose not to. That is not to say the delay is unimportant. Of course, it isn’t, for I must sentence the person before the court and the process of rehabilitation cannot be ignored even in a setting where you had contributed to the delay as you plainly have here. You have lived a law-abiding life since and that is to your credit.
29 You are a now a long way removed from this offending and well along the path of rehabilitation. You are very much a different person to the man who offended in 2003. I have no choice but to imprison you, that is obvious, but the life you have led since must impact upon the decisions I make as to the extent of the weight to give to specific deterrence and community protection. Had you been committing offences left, right and centre since 2003, the passage of time would be no friend to you at all. Far from it. But that is not the position. In fact, but for these undoubtedly serious offences occurring all those years ago, you have not put a foot wrong. I have your early plea and I have your remorse and insight into the damage you have caused. I believe from all that I can see that you have very good prospects of rehabilitation and a low risk of re-offence which coincides with the opinion of the expert.
General
30 I must take into account the nature and the gravity of the offending and the maximum penalties in play. I have to take into account the impact of the offending. Here it has been large as is conceded.
31 As to the gravity of the offending, your counsel correctly concedes that there are a number of aggravating features. She is right. You undoubtedly took advantage of the intoxicated state of each victim. They were highly intoxicated and you knew it. Ms Walters was only 17. She tried to resist your conduct but you persisted. You were 33 years old. In fact that conduct targeting her was then challenged by Ms Collins and she then became your next victim. She was also intoxicated. She was only 19. Neither of these women had given you the slightest sense of being willing to engage in any such acts. It is obvious that there was some real planning in relation to the rape. You drove the car away from the scene with both women asleep within. The ‘why’ is obvious enough as your counsel concedes. You were going to sexually assault Ms Collins. You drove to a car park removed from the earlier scene and hence from their peers, and there you raped Ms Collins in a car. It was unprotected penetration with ejaculation and there was some level of force when regard is had to the bruises. There is no reduction in your culpability at all. Mention is made of your intoxicated state. I need to say two things in that respect. Firstly, that is not relied upon in any mitigatory fashion. Secondly I am not satisfied you were greatly intoxicated. There may have been some disinhibition but that is not mitigatory. You were executing a pretty clear plan here. You were able to drive the car away from the scene. You were able to undress Ms Collins. You were able to deceive your friend who chased you down on the phone giving to him a plausible reason for being delayed. It is inescapable that you drove the car away with a view to engaging in this unwanted sexual act. I am satisfied of that level of preplanning beyond reasonable doubt, indeed it is conceded. I do not accept your account now of not being able to remember it. You do not want to remember it, I am sure of that. You remembered the event when spoken to by the police shortly after and did not give a complete account. That is not an aggravating matter of course, I make that plain.
32 Your counsel concedes the various matters of seriousness and then submits that it is not the most serious example of the crime. To that end she sets out in paragraph 14 of her written submissions, the various other aggravating features that do not exist here. No threats or weapons or violence over and above the inherent violence, not a rape in the course of a home invasion, not one in company and an act of relatively short duration. The absence of those matters of aggravation is not a matter in mitigation. For instance, if you had a weapon or engaged in extravagant physical violence over and above the actual rape or conducted a prolonged attack, well of course it would be a worse example of the offence. I am not sentencing you for what you did not do. I am dealing with you for what you actually did and as is conceded, there are plenty of aggravating features present here in relation to each offence. One of your counsel’s opening statement to me on the plea, was that, 'These were serious examples of serious offences.' She was right. They were. They were committed upon vulnerable young women by a mature man. You do not have youth as an excuse. Your culpability is high.
33 Normally, specific deterrence and community protection are very important sentencing factors when dealing with someone for sexual offences. I accept that there can be some sensible moderation of those purposes owing to the passage of time, your guilty plea and remorse, the lack of any past or subsequent offending as well as my findings as to your low risk of re-offence and very good rehabilitative prospects. It can make no sense to place any great weight on those two purposes in light of the various favourable matters I have raised. So specific deterrence, that is deterring you from offending, and community protection can be given a good deal less weight in this case than otherwise might be the case.
34 Punishment is still an important purpose of sentencing. You must be punished justly and proportionately.
35 Denunciation of your conduct is also important and that is the position notwithstanding the passage of time. This was serious criminal offending. You know that. It was disgraceful conduct. You should be ashamed of yourself and I sense that you are. That is a good thing that you are.
36 Rehabilitation of an offender is another sentencing purpose, one that is often overlooked in the media and I have already commented on my favourable findings in that regard.
37 Despite the delay, general deterrence is still a powerful sentencing purpose in this case. I must deter other would-be offenders from this sort of serious predatory sexual offending against women. General deterrence is always an important consideration when dealing with sexual offending. That is the position even when sentencing many years after the offence as I am here.
Current sentencing practice
38 I do pay regard to current sentencing practices. That is not a single, controlling factor. It is just one of many matters which the court must have regard to. By that I mean current sentencing practices in effect as of the date of sentence. See Stalio v The Queen (2012) 46 VR 426. Now one of the offences, the offence of indecent assault, no longer even exists on the Statute book. It hasn’t for very many years. Rape has remained on the Statute books throughout.
39 Though I am required to take into account current sentencing practices, I am not saying that sentencing practices at the time of the offence are irrelevant. They are not. Concepts of equal justice require me to have some regard to those historical sentencing practices if they can be discerned and if they disclosed a materially less punitive approach. That is to say as your counsel puts it, if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices. Your counsel suggests that is the position and refers me to a couple of cases. One of those cases R v Hassan [2010] VSCA 352 had a selection of sentences imposed between 2007 and 2010. The other case of Yankovski [2007] VSCA 259 was also raised as having some relevance to this submission with more serious offending disclosed in that case it was said, and a sentence imposed after trial. I had in fact read both of those decisions before coming on to the Bench for the plea. There were some obvious differences in conduct, in offence setting, in plea and in personal circumstances. They are not comparable cases. Yankovski for instance had a previous sexual relationship with the victim. There was no evidence of ejaculation. Hassan had a traumatic upbringing and the victim happened to be brought to his unit by others. The sentence in Yankovski does not establish a sentencing practice.
40 It is hard to know what to make of your counsel’s submissions as to there being materially less punitive sentencing practices in existence all those years ago. Rape has always been a serious crime. So has indecent assault. Plainly in this day and age we now have the standard sentence scheme within the Act and the standard sentence for rape is 10 years. That has no application to you of course. No doubt that scheme has been brought in to increase sentencing practices into the future. The aspect of planning in this case is a very significant factor. The dismissal of the peers, the taking of the sleeping victim in a car to another location (together with the previous victim) and the extent of her intoxication place this crime into another dimension as far as I am concerned.
41 To consider your counsel’s claim as to the existence of materially less punitive sentencing practices at the time, I have looked back at the Sentencing snapshots from the relevant time frames for rape, as No. 7 of 2005 , No. 83 of June 2009 (for sentences 2003-4 to 2007-8), No. 26 for 2001-2 to 2005-6, as well as the more recent sentencing snapshot No. 230 of 2019. I have also looked at the various snapshots for indecent assault including snapshot No. 80 of 2009 and No. 23 from an earlier point in time. Now, I accept that statistics are always of very limited assistance. They have inherent limitations. They will never provide any firm answer to any issue as to sentencing practice or cast any true light on the actual sentence to be imposed in a given case. It strikes me though that average or most common and/or median sentences disclosed can give at least some very limited sense of any increased sentencing trend. When one examines that information as I have, there have been very few changes in terms of average or most common or median sentences other than in the most recent rape snapshot. That disclosed a considerable increase in average length when regard was had to the combined averages of the previous four years. Of course, I must take into account current sentencing practices. There have been bumps and dips in the sentences over the many years whether dealing with rape or indecent assault, for as long as that crime remained on the statute books. Indeed there was an increase in 2003-2005 in each instance. As to rape sentences, they will be travelling upwards, there is no doubt about that, and that will be to some extent influenced by the Standard Sentencing Scheme which has no application to you. The Snapshots also disclose a very large range of individual sentences that have been imposed over the years. That simply reflects the fact that every case will be determined on its' own facts. No crime or offender is ever identical.
42 I am not a statistician and I will not sentence according to the most common or average or median sentences as disclosed in these materials. What I will do is sentence you for your crimes. The statistics say nothing about any of the individual features of the crime or the offender. I know all about the features of aggravation in this case as well as the features in mitigation.
43 I have also looked at a selection of cases in the new sentencing manual.
44 I note also the references in the case of Carter [2018] VSCA 88. I am not dealing with delay in charging as existed in that case or as often exists when this issue commonly rears its head. I am dealing with the delay in finalisation of the case, a delay brought about by your failing to attend court back in 2005. Now Carter makes it plain that the Stalio reasoning still has a role to play and that it has not been displaced by the High Court case of Dalgleish. The Court of Appeal in Carter made it clear that the principle did not require the court to sentence in accordance with the prevailing practices existing at about the time of offending. Rather it requires the Court to have regard to those practices. The weight to be given will vary from case to case. See para [55] Carter. I also note in the case of Hassan to which I was referred, the Court of Appeal’s view as to the inadequacy of existing practices and the merciful nature of the sentence they ultimately intervened in relation to. That intervention was driven entirely by the constraints that they, the Court of Appeal, felt existed by virtue of the then current (but inadequate) sentencing practice. See paragraphs [42], [43] and 60 of that decision. The case of Dalgleish in the High Court corrected that approach.
45 Ultimately then, I do have some regard to the prevailing practices existing at the time of the offending. It is not of much weight at all for the reasons I have advanced, and your counsel concedes that your contribution to the delay is also relevant.
46 I repeat what I said a short time ago. Rape has always been a serious crime. So too has indecent assault. Sentencing practices are but one of a large number of matters that I must have regard to.
Totality
47 I pay regard to the principle of totality of sentence. I have given consideration to the overall effect of the sentences imposed by this court. I have engaged in a last look at the overall effect in endeavouring to avoid imposing a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall criminality. Your overall criminality was high in this case.
48 Neither of these crimes was minor. Each has had a lasting impact. Plainly the rape is more serious. The maximum penalty for that crime is far higher as well and of course I must have regard to that fact. Though committed on the same night, these were separate criminal acts, committed upon quite separate victims with individual impacts. There is a need for some meaningful cumulation between the sentences imposed.
49 Prison is always a disposition of last resort but one which is well and truly required here. That is conceded by your counsel.
50 I take into account all of the matters that have been raised by your counsel, including all the materials that have been placed before me. I have not descended into the detail of the two references that have been placed before me (Exhibit 3). I take them into account as well. One was written without any knowledge of the nature of the charges and was not relied upon by your counsel. The fact is, though, I need no convincing that you are a different person from the person who committed these serious offences all those years ago.
51 It is time for you to be sentenced by this Court for your serious criminal conduct committed upon these two totally innocent young women all those years ago.
52 Stand up please.
Sentence
53 On Charge 1 indecent assault, I convict and sentence you to two years imprisonment.
54 On Charge 2 the charge of rape, I convict and sentence you to five and a half years' imprisonment.
Base
55 I direct then that the base sentence is the five and a half years imposed in relation to Charge 2.
Cumulation
56 I direct that 12 months of the sentence imposed on Charge 1 is to be served cumulatively, that is, on top of the base sentence.
Total Effective Sentence
57 This produces a total effective sentence of six and a half years' imprisonment.
Non-parole Period
58 I fix a period of three years and nine months during which you will not be eligible for release on parole.
Section 18
59 You have already served 273 days in custody and that is to be entered into the records of the court.
6AAA
60 I have taken into account your guilty plea. Had you been found guilty after trial I would have imposed an eight-and-a-half-year term with a six year non- parole period.
Sex Offenders Registration Act 2004
61 You have been sentenced in relation to one registrable offence being Charge 1 as it was committed against a person aged under 18. That is therefore a Class 2 offence under the Sex Offender Registration Act. Pursuant to s.34 of that Act you must comply and continue to comply with your reporting obligations under that Act for the period of 8 years upon your release from prison.
62 I am shortly going to have handed to you a document that explains the conditions which will apply to you upon your release from prison including the need to report your personal details to the Chief Commissioner of Police for the period of eight years.
63 There are very many other obligations cast upon you which you will see on that document. You will need to familiarise yourself with those provisions, as a breach of them is itself a very serious criminal offence.
64 Mr Swan, I am sure you would have seen these documents before. They are very lengthy of course. They set out his various obligations under the Sex Offenders Registration Act. I am not expecting he is going to sit down there now and read every word. That would be impossible for anyone to do. What I am having handed to him are the details of his obligations under the Act. I will be asking him to acknowledge by way of signature that he has been served with his reporting obligations. Do you understand that?
MR SWAN: Yes, Your Honour.
HIS HONOUR: So that is what I will have you go down with my associate and have that signed. Thank you.
Your client has signed that acknowledgement. My associate will sign that as well, but your client has signed that document is that so?
MR SWAN:Yes, Your Honour.
HIS HONOUR: Thank you. Now, are there any other matters that I need to deal with, or any other matter that I have overlooked at all, or not.
MR PATHMARAJ: Not from the Crown's perspective.
MR SWAN:No, Your Honour.
HIS HONOUR: No, all right. You'll go down and see your client downstairs, will you?
MR SWAN:Yes, Your Honour.
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