Director of Public Prosecutions v O'Reilly (a pseudonym)
[2024] VCC 1656
•16 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN O’REILLY (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2024 | |
DATE OF SENTENCE: | 16 October 2024 | |
CASE MAY BE CITED AS: | DPP v O’Reilly (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1656 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing
Catchwords: Rape – plea of guilty
Legislation Cited: ss 5, s5B(2)(b), 6AAA, 18 Sentencing Act 1991 (Vic)
Cases Cited: Jurg & Miftode v The Queen [2016] VSCA 57
Sentence:Total effective sentence of 4 years and 6 months with a non- parole period of 2 years and 10 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Piccone | Director of Public Prosecutions |
| For the Accused | Mr McGlone | Victoria Legal Aid |
HER HONOUR:
1 Dylan O’Reilly,[1] you have pleaded guilty to one charge of rape.
[1]A pseudonym.
Circumstances of offending
2 The full circumstances of your offending are outlined in the prosecution opening of 3 October 24. The victim of your offending is your nephew by marriage, Levi McGibbon,[2] who was previously known as Georgia McGibbon.[3] Mr McGibbon was born female, had female genitalia on the date of the offending, but identified as male. He was 19 years of age at the date of the offending. You had been in a relationship with Mr McGibbon's aunt, Emma O’Reilly,[4] for approximately 18 years.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
3 On 8 December 2020, Mr McGibbon went to visit his extended family. You invited him over to your home for dinner. On 10 December 2020, he attended your home at approximately 4.30 pm. By the time you had arrived home from work at 5.30, Mr McGibbon and your wife, that is his maternal aunt, had consumed roughly three beers each. All three of you then drank a substantial amount of alcohol over the course of the night. Mr McGibbon was 'pretty drunk' and could not walk straight and knew he had too much to drink and decided to stop. He asked you to stop making him drinks because he had had enough and you said 'Okay'.
4 At this point, your wife had fallen asleep on a two-seater couch she was sitting on with you. She was sitting up but leaning on your shoulder. Mr McGibbon was sitting on an armchair closest to where she was on the couch. You then lent over towards him whilst holding your wife so she would not fall. You put your left hand on Mr McGibbon's knee. He was wearing pyjama shorts. You told Mr McGibbon how proud of him you were and how beautiful he was. He thought you were just being affectionate, but then you moved your hand up to his thigh and began rubbing it. He felt uncomfortable and pushed your hand away. He then ended up going to bed in the guest bedroom and your wife went to bed in the master bedroom at around 1am.
5 Mr McGibbon was wearing a top, shorts and underwear prior to falling asleep. He woke up completely naked and saw you on top of him between his legs. His legs were up and you had his hand between his legs near the knees. You were moving back and forth and grunting. Mr McGibbon could feel your penis deep inside his vagina. He felt like this only happened for a short time. He then moved his head back to the side and was going back to sleep when he felt you ejaculate on his stomach, on his hip bone area, just above his underwear line (charge 1 – rape). He then fell back to sleep.
6 Later that morning, sometime before 8am, Mr McGibbon was woken by you on re-entering the guest bedroom. You were getting ready to go to work and asked Mr McGibbon whether you had left your hat in the guest bedroom. You then left and Mr McGibbon noticed he was completely naked. He was shocked and confused as he did not usually sleep naked. He felt 'weird inside his vagina' and was experiencing some pain as outlined in the prosecution opening.
7 Mr McGibbon managed to get dressed and walked out to the kitchen when you suggested that he should have a shower. Mr McGibbon continued to feel some pain when urinating and noticed a spotting of blood on toilet paper. He messaged a friend about the situation and then spoke to his aunt who told him that you had not come to bed until about 2.30am and that you told her that you had stayed up having more drinks with Mr McGibbon.
8 At 11.30am, Mr McGibbon caught a bus. During the trip, he started to worry about falling pregnant as he had never had sex before. Mr McGibbon did not consent to having sex with you and did not suggest to you at any point in time that he had a sexual interest in you.
9 On returning home, Mr McGibbon complained to his cousin, mother and other family members. He was taken to the Frankston Medical Centre, examined and observed to have a mildly bruised and discoloured labia. A negative pregnancy test was conducted and the hospital reported the matter to police. Mr McGibbon was further examined and he reported pain and bleeding of genital region and generalised tenderness around the genital region with no observable injury. Forensic samples were also taken.
10 On 14 December 2020, you were arrested and interviewed. A summary of your responses are extracted paragraph [42] of the prosecution opening, in which you denied the offending. You consented to a sample of your DNA being taken and subsequently you were identified on a swab taken of Mr McGibbon's vulva with DNA testing.
11 As of today's date, that is 15 October 2024, there are 881 days in pre-sentence detention to be declared under s18 of the Sentencing Act.
Victim Impact
12 Mr McGibbon has provided a powerful statement in which he describes the profound and life changing impact of your offending. He describes how it has eroded his trust in men, caused flashbacks and anxiety and undermined his sense of safety. He talks about how being trans he had already felt like an alien in his own body and states 'Your actions rid any little bit of love or dignity I had left. You took the control I had completely out of my hands and that was one of the only things I had left going in my favour'.
13 Your offending has impacted all facets of his life including his ability to sleep, his ability to work and thus his financial security and his family relationships. He states 'It drove a wedge between my family and I because I could never really put into words how destroyed I was inside and could only resort with anger and screaming to finally feel back in control'. He is concerned as to how it may continue to impact him in the future and of how protective he may be over his own children one day, but also resolutely states 'I will never allow it to control me or my life again and I'm never going to identify as a victim either'.
14 In sentencing you, I take into account the impact of your offending on Mr McGibbon.
Gravity of Offending
15 Mr O’Reilly, clearly your offending is serious. Rape is an inherently serious offence as indicated by the maximum penalty of 25 years imprisonment, fixed by parliament. It is also a Category 1 offence under the Sentencing Act 1991 (Vic) (‘Sentencing Act’) requiring the imposition of a term of imprisonment, other than a term of imprisonment imposed in addition to the making of a community corrections order. Rape is also a standard sentence offence. The standard sentence is 10 years imprisonment. There was no dispute in your case that your offending requires a term of imprisonment structured by way of a total effective sentence and non-parole period.
16 Turning to an assessment of the gravity of your offending. Your offending involved a significant breach of trust. Mr McGibbon was the biological relative of your wife and had grown up with you within this family context. The offending took place in your home where he was an invited guest. There was also a significant age disparity between you, with you being 43 at the time, and Mr McGibbon, as already noted, 19. You took advantage of Mr McGibbon in circumstances where he was vulnerable in that he was asleep and had gone to bed intoxicated. There is evidence that you ejaculated on Mr McGibbon's stomach and I note his subsequent worry and concern as to possible pregnancy.
17 In all the circumstances, the prosecution submits that this is a serious example of a serious offence. I accept that while you invited Mr McGibbon to your home on the relevant night, this does not demonstrate any premeditation on your part to offend against him. I also accept, as submitted by your counsel, that your offending does not have some of the hallmarks or aggravating features that this type of offending often does. It was not committed in company. It was a single offence of penile to vaginal penetration for what is described as a 'short time'. It did not involve any additional overt violence, of course, appreciating that the act rape itself is an inherently violent one. There were no threats or weapons used and there were no physical injuries caused to Mr McGibbon though I note that he felt a sharp pain inside his vagina and a pulling pain in the ovaries.
18 Overall, using the framework provided by such cases as Jurg & Miftode v The Queen,[5] I consider that while there are more serious examples this type of offending, your conduct represented a significant intrusion and violation of Mr McGibbon's bodily integrity and personal dignity. While I note you were also drinking this evening, that does not excuse your behaviour or mitigate your moral culpability which is assessed as high.
[5] [2016] VSCA 57.
Plea of guilty
19 There is a protracted history in your case which I will briefly summarise. As already noted the offending occurred in December 2020. You were interviewed and bailed. On 12 November 2021, at a committal mention hearing in the Magistrates' Court you entered a plea of guilty to the charge. Your case was listed for a plea hearing in the County Court in May 2022 and on 19 May 22, you failed to appear. A warrant was issued and executed that day and your bail was revoked. There were subsequent direction hearings where your previous lawyers withdrew from acting on your behalf and you indicated an intention to plead not guilty.
20 On 8 September 2023, there was a pre-trial ruling that your plea of guilty entered in the Magistrates' Court was admissible in your anticipated trial. On 12 June 2024, your case was listed for trial and you entered a plea of guilty on that day. Your counsel, Mr McGlone, submits that over the course of this period you have had time to reflect and you have benefitted from engaging new lawyers. You acknowledge the poor choices you have made and you have returned to your original position.
21 I accept that your plea represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice. It has also spared Mr McGibbon the further ordeal of giving evidence at trial and has utilitarian value.
22 The issue of whether your plea is also indicative of remorse is a vexed one. I have already summarised the relevant chronology. From the outset of your discussions with clinical and forensic psychologist, Dr Fiona Morrison, you indicated that you were not contesting the charges and that you were pleading guilty. You did not want to put the victim or other family members through the peril of a trial and that your actions were wrong given the close familial relationship and you deserved to be punished.
23 However, you also told Dr Morrison that you were of the firm belief that the sexual encounter that occurred between you was not non-consensual in nature and you describe an event whereby Mr McGibbon was an active and willing participant. This description is at odds with the prosecution opening and the manner in which your plea has been conducted and to be clear, it is a version of events that I reject. It is difficult to reconcile this narrative with your expressions of shame and remorse.
24 Your counsel suggested that you have likely represented the event in a particular way in an attempt to distinguish it from instances of violent assaults where there is clear evidence of physical coercion and subsequent injury. You want to communicate a clear apology to Mr McGibbon and to the other affected family members. The prosecution submits that your account of the offending represents a lack of insight and minimisation. Also, given the history of your matter and your late plea, the court should not accept that your change of position has been motivated by altruism or genuine remorse.
25 Overall, Dr Morrison perceived you as displaying clear signs of remorse because notwithstanding your factual account, you did not deny the impact of the incident on the victim, nor the wrongfulness of your actions and you were motivated to spare him the stress of a trial. In all the circumstances, even though your plea of guilty is a late one and there may have been a range of motivations for you to resolve the matter as you have, the plea is still important and does entitle you to a discount. I also accept that you have indicated a degree of remorse for your offending though it is qualified. Whether or not your description of the events is an attempt to minimise or try and rationalise your appalling offending behaviour with how you otherwise perceive yourself, it is clear, Mr O’Reilly, that you need to reflect and work further on your insight.
Personal circumstances
26 Your personal circumstances were canvassed by Mr McGlone and are detailed in the report of Dr Morrison of 8 September 2024. You are now 47 years of age and you have no prior criminal history. You describe your childhood as a stable and conventional one. You grew up in Langwarrin. Your father worked at Telstra where he held a senior position and your mother ran her own business. You have one younger sister. You attended Hillcrest Christian College where you completed Year 11. You socialised well at school but you were never particularly interested in the academic side.
27 While your upbringing was relatively uneventful, Dr Morrison notes that your somewhat distant relationship with your family while growing up has caused you to develop a tendency to internalise your problems leading to periods of depression throughout your life and to minimise certain emotional responses.
28 On leaving school you remained in constant employment. You commenced first with factory work after which you secured an apprenticeship as a tiler working on a number of building sites. You then obtained work at Woolworths where you were to remain for some 19 years, working in a variety of roles including managerial positions in several different departments. You met your ex-wife, Emma O’Reilly, in 2002 when she was working in hospitality. You commenced a relationship and you took on the role of being a father to her young son who is now a young adult. With your encouragement, she joined the Victorian Police. It is through this work that she applied for a transfer to regional Victoria and the family ended up relocating.
29 In 2010, your father was diagnosed with prostate cancer. This was treated but further complications arose with the subsequent diagnosis of lung cancer and then a diagnosis of terminal brain cancer. Following his death in 2012 and in the context of grief and misunderstandings, your family relationships deteriorated. A dispute over the lending out of your father's tools by your sister led to a complete breakdown and you have had no contact with your mother or sister since.
30 In 2017, you and your ex-wife decided to put into effect your plans to move to the country, purchasing a small property northwest of Stawell. After moving, your ex-wife confided her bisexuality to you leading to a mutual decision to redefine your relationship as an open one and you are still navigating the boundaries of this. Dr Morrison considers that you had a 'lack of clarity' around boundaries in the newly open relationship between you and your wife.
31 During this period, you had very little social supports and meaningful personal relationships in your life. As already noted, relationships with your immediate family had ended. Your stepson had also grown up and moved out in November 2020 and further isolation was caused by the COVID lockdowns. You were drinking during this time in seemingly large amounts, but you do not identify that as having been problematic.
32 You have a history of drinking from approximately 15 years of age. You report struggling with your drinking after you were charged and as using it as a means of coping and passing the days. You have no established history of psychiatric or psychological treatment. You have taken some antidepressant mediations in the past and saw a therapist on one occasion. You described to Dr Morrison two suicide attempts that occurred after you had been accused of this offending and prior to your remand.
33 Dr Morrison opines that you meet the diagnostic criteria for major depressive disorder moderate severity, recurrent and adjustment disorder with anxiety (at [104]-[105]). At the time of the offending, whilst she considers that you may have presented with some subclinical symptoms, you would not have met the diagnostic criteria for any mental health condition. She considers it likely that your symptoms of major depressive disorder commenced after you were first charged at the end of 2020 and that your adjustment disorder commenced after your back injury in mid-2023. She considers that you do require therapeutic treatment for these conditions and that without it your 'mental health is likely to at least remain consistently poor if not further deteriorate'. It is also possible that with a lengthy period of incarceration your adjustment to the community and the impact on your mental health is likely to be difficult (at [135]).
34 In sentencing you, Mr O’Reilly, I take into account your personal circumstances. I also indicate that I have taken into account as submitted by your counsel today your period on remand, including the more onerous conditions of custody that you have served as a result of the restrictions caused by the COVID-19 pandemic. As confirmed by the Sentence Management Division, since your remand in May 22, you spent an initial six days in protective quarantine, a further two days on transfer to Hopkins and then further lockdown periods between 18th to 28 July 2022 and 11 August to 20 August 2022.
Prospects of rehabilitation
35 Overall and given your relatively mature age and the absence of a prior criminal history, your prospects of rehabilitation can be viewed as favourable. Dr Morrison also conducted formal risk assessments which overall determine that you pose a low risk of sexual recidivism when compared to other male sexual offenders. She notes generally that your mental conditions rate as risk factors for reoffending and the need for appropriate treatment and management to further decrease your risk.
36 Dr Morrison also opined that there were no aspects of your mental functioning that would impede your rehabilitation. In summary, you scored in the low range for all psychopathic traits. You scored in the extremely severe range for both depression and anxiety and in the severe range for stress and there were no indications of any personality disorders. Dr Morrison considered that you presented with multiple protective factors. You displayed a willingness to seek support and to engage with services. You also indicated a strong work ethic and a commitment to remaining in the workforce whilst in custody and to re-entering it once released.
37 She considers that you need appropriate psychiatric, psychological and social intervention to treat your conditions with appropriate treatment and supports your prognosis 'greatly improves'. She makes a number of detailed recommendations of future treatment and risk management in her report. I take into account that in custody you are engaging with a case worker, developing peer relationships and sustaining employment. Your support networks are now very limited and this is something that you will need to rebuild when released into the community.
Sentencing purposes
38 The basic purposes which a court may impose a sentence of punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The community does expect that the courts will unequivocally denounce and punish conduct of this kind and send a clear message that it will not be tolerated. I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act where relevant in your case. The only appropriate sentence given the gravity of the offending and also its significant impact in this case is one of immediate imprisonment for a substantial period.
39 As earlier noted, the standard sentencing regime applies to your case and the standard sentence for rape is 10 years. The standard sentence for an offence is the sentence that taking into account only the objective factors affecting the relative seriousness of the offence is in the middle range of seriousness. In considering the impact of standard sentencing, I take into account the relevant authorities. When sentencing for a standard sentence offence I must take the standard sentence into account as one the factors relevant to sentencing. This requirement, therefore, is to be treated as a legislative guide post, having the same function as the maximum penalty. In the same way that the maximum sentence is a factor in the application of the intuitive synthesis, so to is a standard sentence.
40 Pursuant to s 5B(2)(b) of the Sentencing Act, in relation to a standard sentence offence, I can only pay regard to sentences previously imposed where rape was the subject of the standard sentence scheme. I have had regard to cases that deal, in particular, with sleeping victims, since the standard sentence regime commenced operation. I note, of course, that each case turns on its own unique facts and circumstances. Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence, unless satisfied that it is in the interests of justice not to do so.
41 The sentence that I am about to impose in respect of your charge is lower than the standard sentence. I have considered all relevant factors, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation that I have outlined, including your lack of prior criminal history and I have determined that the following sentence is appropriate.
Sentence
42 Synthesising all relevant factors, Mr O’Reilly, on Charge 1, you are convicted and sentenced to four and a half years imprisonment and I set a non-parole period of two years and 10 months.
43 Pursuant to s 18, I declare that you have served 881 days.
44 Pursuant to s 6AAA, I can indicate that had you not entered a plea of guilty, I would have sentenced you to some six years imprisonment with a non‑parole period of four years and two months.
45 HER HONOUR: Counsel, is there anything further required? There's no application. I know it's discretionary, no application for a SORA is made. I'm not proposing to make one. Were there any other orders?
46 MS PICCONE: There's nothing further, Your Honour.
47 HER HONOUR: No. Mr McGlone.
48 MR McGLONE: No, Your Honour.
49 HER HONOUR: All right. Just give me one moment. All right. Mr McGlone, would you like a moment on the link with your client.
50 MR McGLONE: I'll just simply say that I'll have a conference with my client within the next two days one to one. I think that's probably the better way to proceed, Your Honour.
51 HER HONOUR: Yes. Thank you. I thank counsel for their assistance. I also thank those who have participated. I do understand that Mr McGibbon is on the link and I just want to thank him for his contribution as well.
52 MS PICCONE: Thank you, Your Honour.
53 HER HONOUR: We'll adjourn.
- - -
0