Director of Public Prosecutions v O'Loughlin

[2024] VCC 554

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -22-00523

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK O'LOUGHLIN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2024
CASE MAY BE CITED AS:	DPP v O'Loughlin
MEDIUM NEUTRAL CITATION:	[2024] VCC 554

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Sex Offenders Registration Act2004 (Vic)

Cases Cited:R v Verdins [2007] VSCA 62; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110; Marrah v The Queen [2014] VSCA 119; DPP v Drake [2019] VSCA 293

Sentence:7 years and 8 months imprisonment with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews	Office of Public Prosecutions
For the Offender	Mr C. Oldham	Adrian Paull Criminal Lawyers

HIS HONOUR: 

1Mark O’Loughlin, you were found guilty by a jury on 3 November 2023 of one charge of rape on Indictment M12650066.1. The maximum penalty for this offence is 25 years’ imprisonment. The jury was therefore not required to return a verdict on the alternative charge of sexual penetration of a child under the age of 16 years.

2Rape is a Category 1 offence.  It is not submitted that you fall into any exception which would permit anything but a period of imprisonment with a non-parole period to be imposed.

3Further, the crime of rape carries a standard sentence of 10 years’ imprisonment.  Further to that, the Court must fix a non-parole period of not less than 60 per cent of the total effective sentence unless it is in the interests of justice not to do so.

4You have admitted your prior criminal history.

5The Crown does not seek to have you registered under the Sex Offenders Registration Act 2004 (Vic). In the absence of an application, I do not have the power to make an order and in any event I do not intend to make such an order.[1]

[1] See DPP v O’Loughlin [2024] VCC.

Circumstances of Offending

6The facts upon which the jury found their verdict may be briefly stated. 

7The offending occurred on the evening of 14 December 2021. You and the victim were not known to each other. You were 49 years old at the time and the victim was 13 years old.

8The victim had been in the Melbourne CBD with a friend and had caught the train to return to her home address in St Albans.

9At approximately 11:40 pm, the victim was walking home along Main Road East, St Albans. You drove past the victim in your truck, you stopped your truck on the side of the road and called out to the victim.

10The victim walked over to your truck, you asked the victim if she wanted a lift home and the victim accepted.

11After the victim entered your truck you then grabbed the victim’s head and pushed her head towards your penis. You forced your penis into the victim’s mouth (Charge 1, rape).

12The victim described in her VARE that you kept pushing her head down onto your penis and she started choking. The victim said that as this was happening she was mumbling and crying and begging you to let her go. The victim described her hands being in your lap, she was trying to push away and you threatened to kill her.

13The victim gave evidence following this that you removed your penis from her mouth and licked and kissed her neck and forced her to kiss you.  She was crying and you told her to shut up otherwise you would punch her. (Uncharged act).

14You told the victim not to say or do anything or you would come after her and you allowed the victim to leave your truck.

Objective Gravity and Moral Culpability

15I turn now to consider the objective gravity of your offending and make an assessment of your moral culpability.

16The maximum penalty, the fact that it stands as a Category 1 offence, and as a standard sentence with a presumed non-parole period, all speak to the seriousness of the crime of rape.

17I turn now to consideration of the standard sentencing scheme.

(a)The scheme provides a standard sentence of 10 years on the charge of rape;

(b)The scheme also provides for a standard non-parole period of at least 60 per cent of the sentence unless I consider it not in the interests of justice to impose such a non-parole period;

(c)The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of the seriousness for that offence;

(d)Objective factors exclude the consideration of matters personal to you as an offender or to a class of offenders.  Rather, it is determined wholly by reference to the nature of the offending;

(e)This does not limit the matters which I must or may take into account in determining the appropriate sentence, nor is it intended to affect what is known as the instinctive synthesis process.  The standard sentencing scheme may be considered as a guidepost in the sentencing consideration, however, it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration;

(f)And finally, in determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.  In this way it is an additional factor to consider in the sentencing process. 

18Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

19I consider the objective gravity of your offending must be considered as serious.

20There was an obvious age difference between you and the victim (although it was not part of the jury’s task and I make no finding that you knew her to be under 16 years of age), and I find that your conduct was rough and that it was accompanied by a threat.

21The Crown submitted that your conduct was predatory. Whilst it is true that you did not groom or stalk the victim, you lured her to the car with the promise of a lift home, in that way your conduct was predatory.

22I also take into account that this was a single, relatively brief incident. I also take into account the psychologist’s finding that you do not have strong indicators of sexual deviance, either a disposition towards young adolescent females or a strong interest in non-consensual sexual acts.

23Your moral culpability for your offending is, nevertheless, high.  Your offending must be met by principles of deterrence and denunciation. It goes without saying that your offending must be met by a term of imprisonment with a non-parole period.

Personal Circumstances

24You are now 52 years of age and you are currently single.

25You were born in Victoria and were raised predominantly in the northern suburbs of Melbourne.

26Prior to your remand for this offending you resided by yourself in a flat in Epping.

27You were brought up by your adoptive parents with your older brother.  Your adoptive parents are now both deceased. You told psychologist Simon Candlish that your father ‘loved to drink’ and would start drinking with his peers. Your mother was described as stoic and dismissive of your early speech and learning difficulties.

28Your relationship with your mother was complicated but it is clear that you loved her nonetheless.  Your mother passed away whilst you were on remand, and whilst you were able to attend her funeral, you were not able to be with her in her final stages of life. This has caused you tremendous amounts of additional stress and grief.

29You state that you were sexually abused between the ages of seven and 11 by an adult female neighbour and in the wake of this commenced to drink alcohol to the point of intoxication at age nine years.

30Your history of drug use is extensive having abused cannabis, panadeine forte, amphetamine and steroids at various points in your life; and more recently methamphetamine and GHB. You note that this makes you paranoid and quick to anger.  I received the neuropsychological report of Bronwyn Hall dated 25 July 2022.  You have been neuropsychologically assessed as having a permanent acquired brain injury due to polysubstance abuse. You may be eligible for services under the NDIS and you will be making an application upon your release.

31You completed your formal education up to Year 10 at Parade College. You then completed a plumbing apprenticeship and have worked consistently as a qualified plumber, including most recently operating your own plumbing business.

32You have a number of concerning prior convictions for assault, assault police, recklessly causing injury, breaching intervention orders and priors for making threats to kill, stalking and damaging property dating back to 1997. You have served previous sentences of imprisonment but you have also received one wholly suspended sentence and one intensive corrections order.

33Although you have family violence related prior convictions you do not have any prior convictions for sexual offending.

34Upon your release you intend to resume your plumbing trade.

35I note that you have been married twice and you have had two other long term partners. You have seven children and your adult son Reece is your main source of support in the community. You have a brother with whom you have little contact.

36Your financial position upon your release will be precarious due to the presumed theft of several excavators which you had leased for your large scale plumbing purposes. Your counsel states that you currently have no savings to finance any debts or costs that may stem from the recovery of this equipment and you may need to consider bankruptcy.

37You are prescribed daily medication to manage your hypertension and you have a spur on your spine and you experience constant back pain.

38As I say, I received the psychological report of Simon Candlish dated 2 February 2024.  After assessment, Mr Candlish reported that your level of intellectual functioning falls in the borderline range at the fourth percentile. You present as a moderate to low risk of sexual re-offending but a high risk of re-offending for violence.

39Mr Candlish also assessed you as meeting the criteria for severe personality disorder, stimulant use disorder and persistent depressive disorder (severe). You are currently prescribed with Seroquel, Valium and other antidepressant medication.

40Mr Candlish reports that you stated that you had been using some drugs on the night of your offending.

41I note that whilst on remand you are reviewed on a regular basis by the psychiatric nurse.

42Because of the nature of the charges you faced when remanded you have been on protection the whole time. This adds to the burden of your imprisonment but to your credit you have worked constantly in the bakery, you have worked as a gardener and in food service.

Sentencing Submissions

43Mr Oldham who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

(a)There has been some delay in the matter due to your arrest during the COVID-19 pandemic, and secondly, the need for two re-trials, both being factors outside your control.

(b)You spent time on remand during the COVID lockdowns and you were impacted by restrictions placed on movement, courses you could undertake and work.  As such the principles in Worboyes have application,

(c)I must take into account the totality of sentences you have served, that is, you have been in custody for over 835 days and some 377 days have been served on other matters;

(d)Your prospects of rehabilitation should be seen in light of the fact that you have no prior sexual offending history, you were assessed as a moderate to low risk of further sexual offending and you have expressed your intention to undertake the proposed interventions proposed by Mr Candlish;

(e)You have your motivation to maintain your work as a plumber, to seek support through the NDIS and take up any counselling available to you through NDIS and counselling available to you;

(f)Mr Oldham submitted that on the basis of observations in Mr Candlish’s report that Verdins[2] Limbs 5 and 6 are enlivened; as such imprisonment will be more burdensome on you and due to your mental health issues and protection status, your risk of self harm is increased;

(g)And finally, it is open to find that your childhood deprivation as set out in the Hall and Candlish reports justifies a reduction in your moral culpability and should operate to mitigate your sentence in line with the principles in the cases of Bugmy[3] and Herrmann.[4]

[2] R v Verdins [2007] VSCA 62.

[3] Bugmy v The Queen [2013] HCA 37.

[4] DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110.

44Ms Andrews who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a non-parole period.  

Analysis

45In my view, a careful reading of the psychological report of Mr Simon Candlish and neuropsychological report of Ms Bronwyn Hall and the history contained in them and provided to me on the plea, allows me to conclude that your formative years were marked by social disadvantage, deprivation and sexual abuse, which in turn led to your early abuse of alcohol and likely commencement of polysubstance abuse.

46The cases of Marrah,[5] Drake[6] and Bugmy were considered in Herrmann,[7] leading the Court to state that the lifelong damage that may result from childhood trauma can and must be taken into account in the general application of sentencing principles.

[5] Marrah v The Queen [2014] VSCA 119.

[6] DPP v Drake [2019] VSCA 293.

[7] DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110.

47Exposure to alcohol abuse and its consequences at the hands of your father and a life of harsh treatment at the hands of your mother may not, of themselves, suffice, but when combined with the sexual abuse that you suffered and then your own abuse of alcohol from the tender age of nine, combine to make the type of childhood trauma that ought to invoke this mitigating principle.

48The complicating factor becomes how this principle sits with the submission that your sentence should be mitigated by the application of the Verdins[8] principles. As I say, you have been neurologically assessed as having an acquired brain injury. Mr Candlish concludes and reports your severe depressive disorder and severe personality impairment interplay with your offending and with your drug use.

[8] R v Verdins [2007] VSCA 62.

49In my view, Mr Candlish’s report does not sufficiently disentangle your drug use from your psychological conditions, nor your psychological conditions from other factors, for me to conclude that your moral culpability should be lowered for your offending.

50The Crown concedes Limb 5 of Verdins,[9] however, Ms Andrews submits that Limb 6 should not be given effect. I agree, and conclude that whilst Limb 5 should be given effect, the psychological report does not convincingly conclude that Limb 6 should be invoked. Mr Candlish says only that you display an unstable sense of self and history of suicidal ideation and self-harm.  He says: ‘These complex issues are likely to be exacerbated in the context of prolonged custody’.

[9] R v Verdins [2007] VSCA 62.

51Whilst these are indeed matters of concern, I must be satisfied that:  ‘Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health’. 

52However, as I say, I certainly intend to take Limb 5 of Verdins[10] into account in the sentencing process.

[10] R v Verdins [2007] VSCA 62.

53The Crown raises concerns that the factors which give rise to the application of the general principles enunciated in Herrmann[11] also give rise to a need to protect the community, if not from your likelihood of sexual reoffending then from your likelihood of violent re-offending. Whilst I agree it is a concern, I note that you told Mr Candlish that you would enthusiastically engage in counselling and treatment programs to address your psychological issues. I consider this display of insight to be encouraging in this respect.

[11] DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110.

54In the sentencing consideration, I have regard to the fact that you have spent a considerable amount of time on remand since you were remanded in custody on this matter and far beyond the time which can be allowed as pre-sentence detention for this offending. As such, I must take the totality of the time you have spent on remand into account and also that you have spent a considerable amount of time on remand during COVID lockdowns and restrictions imposed during those lockdowns.  I accept that this has made the time spent on remand more onerous for you.

55In assessing your prospects of rehabilitation, I note that you continue to dispute the jury finding. Nevertheless, as I have just mentioned, I take into account your stable and consistent work history through your life and that you have continued to work whilst in prison.  I also note that you welcomed the opportunity for treatment and counselling to address a number of your psychological issues. You intend to return to your trade of plumbing and perhaps resume your own business upon your release.

56Overall, the risk of you re-offending (if not for this specific  type offending) must make me cautious about your overall prospects for rehabilitation. I am encouraged by your enthusiasm to embrace treatment and counselling. Together with your work history and the potential to receive assistance from the NDIS leads me to conclude that while your general prospects for rehabilitation can only be assessed as fair, they are certainly not extinguished. It is vital that you embrace all opportunities presented in prison and upon your release on parole (if granted) if you are to reintegrate back into the community.

57I take into account the difficult history of this matter. You had to undergo three trials before the jury reached a verdict. I accept this caused a strain on you living in a state of uncertainty until verdict.

58I was provided with a number of comparable cases. In the end, I must not be overly influenced by the sentences imposed in other cases. Rather, I must fix on a sentence which is tailored to the circumstances of this case.

Orders

59Accordingly, the sentencing order I make in this case is as follows:

60On the charge of rape you are sentenced to seven years and eight months, which is a total of 92 months, with a minimum of five years, which is a total of 60 months.

61I reckon the period of 479 days pre-sentence detention, not including today, reckoned as already served.

62The sentence I have imposed is less than the standard sentence. I have concluded that this sentence is appropriate having regard to the objective factors of the offending and all of the applicable sentencing principles which I have referred, and so far as they are relevant, the matters personal to you.

63Now, are there any other matters ‑ ‑ ‑ 

64MS FETHERSTONHAUGH:  No, Your Honour. 

65HIS HONOUR:  Thank you.  With that, is there any matter you need to raise Mr Oldham?

66MR OLDHAM:  There is nothing further, Your Honour.

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