Director of Public Prosecutions v Oakenfull

[2023] VCC 2043

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01004

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT OAKENFULL

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JUDGE:	HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2023
DATE OF SENTENCE:	8 November 2023
CASE MAY BE CITED AS:	DPP v Oakenfull
MEDIUM NEUTRAL CITATION:	[2023] VCC 2043

REASONS FOR SENTENCE
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Subject:-CRIMINAL LAW-

Catchwords:              Trial – found guilty – six charges – rape – assault with intent to commit a sexual offence – aggravated burglary - stalking – young offender – reasonable prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Azzopardi v R (2011) 35 VR 43; R v Verdins [2007] 16 VR 269

Sentence:                  Total effective sentence of 5 years and 10 months’ imprisonment with a non-parole period of 3 years and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Y. Hardjadibrata	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr R. De-Kretser	Slater and King Lawyers.

HIS HONOUR:

1Robert Oakenfull, on 24 July 2023 after a trial lasting 15 days you were found guilty by a jury of the following charges contained on indictment NL10873743:

(a) One charge of stalking (charge 1) contrary to s 21A of the Crimes Act 1958 (Vic) – Maximum penalty 10 years’ imprisonment;

(b) Two charges of aggravated burglary (charges 2 and 7) contrary to s 77 of the Crimes Act 1958 (Vic) – these offences each carry a maximum penalty of 25 years’ imprisonment;

(c) One charge of rape (charge 3) contrary to s 38(1) of the Crimes Act 1958 (Vic) – Maximum penalty 25 years’ imprisonment; and

(d) Two charges of assault with intent to commit a sexual offence (charges 6 and 8) contrary to s 42(1) of the Crimes Act 1958 (Vic) – these offences each carry a maximum term of 15 years imprisonment.

2These charges relate to offending against Lillie Heaton.[1] At the same trial you were found not guilty of alleged offending against Amy Heaton,[2] the complainant’s sister.

[1] A Pseudonym.

[2] A Pseudonym.

Circumstances of your offending

3The charges you were found guilty of were committed over a period of approximately 19 months between 1 February 2016 and 7 September 2017. At the time your partner was friends with the complaint’s sister, Amy Heaton.  All the offences were committed at Amy Heaton’s property in Trentham[3].

[3] Location de-identified.

4Your partner had an arrangement where she kept her horse at The Trentham property. Amy Heaton allowed several people to keep their horses on her property and a small group with a similar interest in riding horses would frequently attend the property during the relevant period and socialise together. You were not a horse rider yourself but initially started visiting the property when accompanying your partner.

5The victim, Lillie Heaton, gave evidence during the trial, detailing the circumstances of your offending. Your defence during the trial was that the offending did not occur. The jury’s verdict indicates that they have found Lillie Heaton to be a truthful and reliable witness. It is my task to sentence you for the offending on a factual basis consistent with the jury’s verdict.  

Charge one - Stalking

6Charge one is the offence of stalking. Although the charge is drafted as occurring between 1 February 2016 and 7 September 2017, during the trial the prosecution alleged the stalking occurred over approximately 3 to 4 months in the first half of 2016. 

7Lillie Heaton gave evidence that she came to live at the Trentham property in early 2016. She lived in a bungalow that was attached to the side of the main living residence. She met you soon after moving into the bungalow, when you and your partner came to visit her sister. Lillie Heaton felt uncomfortable when she met you as you appeared to be looking at her with a piercing stare and you hardly spoke to her.

8The victim’s evidence was that, a few days after that first meeting you again visited the property with your partner. When you were alone with Lillie Heaton you started to ask her inappropriate questions as to whether she had nude pictures on her phone.[4] She told it was none of your business, but you persisted in acting inappropriately and snatched Lillie Heaton’s phone out of her pocket and ran off with it. Later, on the same day, you entered Lillie Heaton’s bungalow and overturned her furniture and emptied her clothing and possessions out onto the floor.  When she confronted you about this, you responded that you were looking ‘for her toys’.

[4] T 210L 3.

9The victim gave evidence that in the following months when you visited the property you would:

·        regularly brush your body past hers and touch her backside with your arm or leg;[5]

·        grab her hips and thrust your crotch into her backside in circumstances where she could feel your penis pressing against her buttocks;[6] and

·        enter her private bungalow on the property without invitation and lie on her bed.[7]

[5] T 224 L 19.

[6] T 225 L 20; T 226 L 10.

[7] T 243 L 8.

10The victim gave evidence that this type of behaviour was occurring constantly and made her feel violated[8] and uncomfortable[9] and like her personal space had been taken away from her.[10] It is this combination of conduct over these months that constitute the stalking charge.

[8] T 221 L 16

[9] T 230 L 17.

[10] T 221 L 19-20.

Charges 2 and 3 – Aggravated burglary and Rape

11A month or two after the victim had moved into the bungalow, she fell off a horse and injured her coccyx. She was taking painkillers and was using a walking frame to assist her to move around the property.[11] At this time you were practically a daily visitor to the property, and when you were there the victim would ‘try and make herself scarce’.

[11] T 231.

12In mid-2016, The victim was hanging some washing at the back of her bungalow and saw her sister and your partner driving away from the property. She was worried that there were no other adults except you on the property. She stopped hanging out her washing and started shuffling back into her bungalow through the back entrance with the assistance of her walking frame. There were two doors to go through, to enter her bungalow, and as and she was going through the second door you came up and grabbed her from behind.[12]

[12] T 233.

13Your arms went around her waist and pulled her from her walking frame into your body. You put your left hand around her throat[13] and had your right hand placed down the front of her pants.[14] You inserted one of your fingers into her vagina.[15] The victim began to scream, and you placed fingers on her voice box, and ‘pushed in’ so she could not speak. She could not say how long your finger was in her vagina but you ‘abruptly stopped’ when you heard a noise and ran out the back door.

[13] T 233 L 30.

[14] T L 234.

[15] T 235 L 4.

14The charge of aggravated burglary is on the basis that you entered the bungalow as a trespasser intending to commit an offence that involved an assault upon the victim. The rape charge is based upon your digital penetration of the victim’s vagina in circumstances where she was not consenting, and you had no reasonable belief that she was consenting to that act of penetration.

Charge 6 - Assault with intent to commit a sexual offence

15There was a period where you were not allowed to visit the property because of issues relating to the tragic death of your own child. You had little if any contact with the victim for some time.  

16On a day in July or August of 2017, The victim was moving a washing machine at the Trentham property and you approached her and offered to help.[16] As The victim was getting a trolley to move the washing machine, you grabbed her by the wrists and arms and ushered her through the doorway of her bungalow and pushed her down onto a couch.[17] You attempted to remove her pants by undoing buttons and you pinned her down with your legs. She tried to kick and push you away.[18] You were “fumbling” around with your pants during this incident, and you stumbled into a glass door which made a loud bang. The noise seemed to scare you and you ran out of the room. These acts constitute charge 6 of assault with intent to commit a sexual offence.

[16] T 257 L 13-14.

[17] T 259-260.

[18] T 260 L 7-17.

Charges 7 and 8 – Aggravated burglary and Assault with intent to commit a sexual offence

17It was a sunny morning on a day in August or September of 2017.  Amy Heaton had left the property to drop her children at school. The victim went to have her morning shower and was surprised to see you and your partner sitting under a tree. She told you both that her sister was not there, and she was about to have a shower. Your partner told the victim that you were cold, and she was going to drive off to get a jumper.  The victim saw you and your partner walking towards your car as she went to have her shower. She did not realise that your partner left the property on her own.  There were two doors to the bathroom. One led internally to the kitchen area of the house and the other door led to the backyard. The victim locked the internal door and barricaded the external door by placing a bedframe against the inside of the door. She also took her mother’s dog into the bathroom with her as she felt unsafe with you on the property.[19]

[19] T 265 L 22.

18As she was starting to shower, she heard a banging noise which she initially thought was her sister’s dog. The victim realised you were attempting to push the door open against the bed head when she saw your foot and arm coming through the doorway.[20] Her mother’s dog attempted to attack you and lunged out of the gap in the door. You managed to avoid the dog and get inside the bathroom.[21] You said words to the effect of “why have you got all this in here and what’s with the dog?” The victim replied, “obviously because I don’t want you in here”.[22] You said, “no, that’s not true, you do want me in here”.[23]

[20] T 267 L 3-16.

[21] Ibid.

[22]  T 267 L 23-24.

[23] T 267 L 26-27.

19The victim turned away from you and tried to cover herself. You undressed yourself and got into the shower with an erection. You approached the victim from behind and put your penis in between the cheeks of her buttocks beneath the top of her thighs.[24] As you were doing this, the victim heard a noise from the kitchen, as apparently, a friend had arrived and was in the kitchen.  You stopped what you were doing and left the bathroom.[25] The complainant sat in the shower until the water went cold and moved to her bungalow and got dressed. This conduct constitutes charge 7- aggravated burglary, as you entered the bathroom as a trespasser intending to commit an offence involving an assault. Your conduct in the shower constitutes charge 8 - assault with intent to commit a sexual offence.

[24] T 268 L 24-25.

[25] T 268 L 27-31.

Victim Impact

20The victim, Lillie Heaton, has decided not to make a victim impact statement. It was explained during the plea hearing that she tried to write some of her feelings down but found it made her anxious and was not good for her. She wrote an email to the Informant stating, ‘I have decided I do need some professional help just to put this whole nightmare to bed.’ In her original statement, the victim stated that she felt you treated her like a toy, and she suffers ongoing issues with trust and intimacy. She felt you targeted her, and you were predatory. When asked at the trial about how she felt at the time of the shower incident, her evidence was, “In the shower I thought that this is it, and there's nothing I can do. I can't fight, there's no point.”[26]  There is, in my view, simply no question that the offending severely impacted upon the victim’s psychological wellbeing and is likely to have ongoing negative impacts.

[26] T 270 L 1-2.

Objective Gravity of offending

21Mr Oakenfull, your offending is objectively very serious. I will say more about these circumstances later in these reasons. However, you need to appreciate that a gaol sentence is a sentence of last resort, particularly for a person that was only in their early twenties when they offended, and where they have a limited criminal history. However, these charges are regarded very seriously by parliament. The seriousness of your offending is increased because your offences were committed over a period of approximately 20 months and cannot be regarded as momentary or spontaneous offending. Your counsel had to concede that the only penalty that could realistically be imposed in respect of your offending was a significant period of imprisonment.  

Personal circumstances:

22I turn to your personal circumstances. Your counsel has outlined those circumstances in written submissions tendered on your behalf and elaborated on these circumstances during the plea hearing.

23Also tendered on your behalf was a psychological report and addendum report prepared by Mr Jeffry Cummins,[27] a letter[28] from Dr Yerra, a neurologist who assessed you in 2016, a ‘Patient Health Summary’ from the Trentham Medical Clinic, a Triage Report from a Ms Anne Conlan,[29] and a number of character references from your mother, and a number of your friends.

[27] Exhibit 3 & 4.

[28] Accompanied by an EEG test Report.

[29] Exhibit 5.

24You were raised in a loving and caring family. Your father worked in multiple jobs and your mother worked as a commercial cleaner. You have three older sisters. I was told none of your family members have been in trouble with the law.  Sadly, your father, with whom you were close, died from a brain haemorrhage in 2009 when you were a young teenager. It was put by your counsel, and I accept, this had a profound emotional impact upon you. Your problems as a teenager were compounded when a trusted person who took up a fatherly role in your life, sexually abused you, when you were still a young teenager.

25In your mother’s reference, she explains some of the surrounding circumstances of the sexual assault upon you:

Robert hasn’t had an easy life. His father died 10 days after he turned 14 years old. A loss which he took really hard.

Robert was a prominent member of the Bendigo Cycling Club where he had a very caring coach who helped him in this time. This coach left Bendigo at the end of the year which upset Robert greatly… another man from a Melbourne Cycling Club …spent a lot of time with Robert over the next few years…this relationship ended up in a court case where the man was found guilty of ‘grooming’ Robert. [30]

[30] Exhibit 8.

26You went to a number of primary and secondary schools in the Bendigo and Kangaroo Flat area. You completed year 12 but did not receive a VCE score. You were counselled by a psychologist during later school years.

27You have one prior appearance in the Children’s Court for sexual penetration of a child under 16. You were aged 16 years old and had a sexual relationship with a 13-year-old girl. You were placed on a good behaviour bond without conviction.

28Since finishing year 12, you have worked in a number of different fields including labouring, mining, arborist, and truck driving. For the last few years, you have been working as a delivery driver for a stockfeed company, also for an abattoir, and you have been employed in jobs relating to the care of horses.

29You were born in March 1995 and were therefore aged between 20 and 22 years old during the period of the offending. During the period of your offending, you were in a relationship.[31] Your partner was several years older than you and had children to previous relationships. You had a son with this partner, who was born on 11 June 2016 and who tragically passed away on 24 September 2016 from sudden infant death syndrome. Your mother’s letter states how this loss devastated you and your partner.

[31] I will refer to the accused’s partner at the time of the offending as HD in order to preserve her privacy.

30I was informed during your plea hearing that you had another son with your partner who is now about 4 years old. However, due to the delay in this case coming to trial, and the fact your partner was a witness in the trial, you were prevented by your bail conditions from having contact with your partner. As a result, you had no contact with this son.  

31Mr Cummins describes you as being depressed from the death of your son around the time of some of your offending. It is also apparent from the letter from Dr Yerra that in 2016 you sought treatment for episodes that you described as seizures, where you suffered memory loss. These episodes were diagnosed as ‘non- epileptic seizures’ (pseudo seizures). It is also apparent that in the years of your offending you were at times suffering suicidal ideation. The Patient Health Summary from the Trentham Medical Clinic records states that on 15 December 2016, a doctor who saw you made the following entry:

Explained in detail re: Medications. Appt to see psychologist – 16/12/16. Supportive Counselling. Lost his job as his boss sacked him – due to his depressive symptoms unable to find a job centrelink certificate given.

32It is apparent from these records that you suffered depressive symptoms that caused you to seek professional help in 2016.

33Mr Cummins noted that during your interview you still maintained your innocence in relation to your offending. Despite your denials, Mr Cummins expressed the view that there was no evidence of attitudes condoning sexual abuse or attitudes consistent with sexual entitlement. He was not of the view that you had a psychopathic personality disorder. Ultimately Mr Cummins formed the view that you became ‘obsessed and infatuated’ with the complainant.

34Mr Cummins assessed you as having overall a low-moderate risk of committing further sexual offences but emphasised that ‘frequently when people are found guilty of sexual offending under circumstances where they maintain their innocence, participation in a sex offender program facilitates a situation where they eventually admit their guilt. He regarded it as imperative that you participate in offence-specific treatment.

35It is not suggested that the psychological assessment of you or the medical documentation tendered provides evidence that you suffered from any mental health issues that could be said to have a realistic connection to your offending.

Submissions of the Parties

36Your counsel Mr De Kretser pointed to a number of factors in mitigation.

37He stressed your youth and immaturity and submitted that the stalking charge demonstrated someone with an extremely immature understanding and attitude towards consent.  

38During the trial, a number of witnesses gave evidence concerning your level of immaturity. Your counsel submitted that it was unfortunate that the social group that attended the Trentham property appeared dismissive of the concerns the victim raised about your behaviour towards her. It was certainly apparent from the evidence given in the trial that your partner was dismissive of the complaints made by the victim about your behaviour.

39I accept that your youth and immaturity are very significant factors to consider in deciding what is an appropriate sentence. You were only 20 – 22 during the period of the offending and had lost the most significant male role model in your life when you had just turned fourteen. You were then abused sexually between the ages of 14 and 16 and it was not in dispute that unfortunately when Lillie Heaton was complaining about your behaviour towards her, none of the adults who socialised at this property took your misbehaviour seriously. Indeed, the prosecutor during his final address in your trial, suggested to the jury that the allegations against you had a ring of truth as they were consistent with your level of immaturity as described by the witnesses. He referred to you as ‘man boy’.

40The courts have recognised that young or immature offenders may be ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgement and self- control that is possessed by an adult … they may not fully appreciate the nature, seriousness, and consequences of their criminal conduct’.[32] I do regard these sentiments as applicable to you.

[32] Azzopardi v R (2011) 35 VR 43, 53 [34].

41The other matter that your counsel emphasised on your behalf was the delay that has occurred between the time when you committed these offences and time at which you are being sentenced. It is now over six years since your most recent offending. There are various reasons for this delay. It is not a matter of blame. The delay has been caused by several factors, including the pandemic, and various problems with the case proceeding that are not attributable to you.

42Your counsel points out that you are now aged 28. You have had the case hanging over your head for this time and have been on bail with conditions that have affected your relationship with your son. It was submitted that you have over this time matured and, in many ways, you are a different person now than the person who offended. There is no dispute from the prosecution that the delay is a significant matter in mitigation. Importantly you have not reoffended in these six years, and I regard this evidence as supportive of Mr Cummins’ assessment of you as presenting as low to moderate risk of reoffending. The delay in finalising this matter is an important factor that I must carefully consider.

43There was also no dispute between the parties that while the evidence of your mental health issues is not such as to reduce your moral culpability for the offending, you do suffer from significant symptoms of depression. Mr Cummins describes these symptoms as consistent with a major depressive disorder and in his opinion your imprisonment will weigh more heavily upon you because of this. The prosecutor conceded during the plea hearing that the evidence engaged both principle 5 and 6 in the well-known case of Verdins[33] and I will take these matters into account in amelioration of your sentence.

[33] R v Verdins [2007] 16 VR 269.

44Mr Oakenfull, the character references clearly paint a different picture of you from the person described by the victim as the person who committed these offences. It is apparent that in other aspects of your life you have been hardworking, and considerate of your friend’s needs.

45It is not submitted that your background is one of profound deprivation, but you certainly have had difficulties that I take into account in a general sense. You are not to be sentenced as if you were a person who had not experienced these difficulties in your background.

46During your plea hearing your counsel submitted that your personal circumstances, such as the death of your father and infant son, your depression, and history of sexual abuse, warranted the court exercising a degree of ‘mercy’ in sentencing you. I have concluded that I can properly take into account these personal circumstances without that sentencing consideration playing a significant role in determining the appropriate sentence.

47As I have already indicated, the prosecution conceded that your youth and immaturity are relevant factors in mitigation along with the delay and mental health issues that will impact upon your experience of imprisonment. However, the prosecutor emphasises the seriousness of the offences you have committed.

48Both parties drew to my attention comparable cases.[34] The cases provide some guidance as to an appropriate ‘yardstick’ as to current sentencing practices for this type of offending, however, each case must be determined by reference to its individual circumstances.  

[34] It was conceded by the prosecution their written submissions on sentencing incorrectly assumed that the ‘standard sentence’ was applicable to your offending.  

49As stated above, the offences of aggravated burglary and rape have maximum penalties of 25 years’ imprisonment. This alone indicates the seriousness with which parliament regards this type of behaviour. It is agreed by both parties that the aggravated burglary offences are closely related to the subsequent sexual offending and a considerable measure of concurrency between those charges relating to the same incident is warranted.

50I do not regard your prior offending in the Children’s court to be of relevance in assessing your level of moral culpability for this offending. However, I do regard your moral culpability for the offending as significant given the persistence of your offending and the manner in which you forced yourself upon the victim.

51Some features that are typically regarded as aggravating features of the offence of aggravated burglary and rape are not present in this case. However, you did enter the privacy of the victim’s bungalow in circumstances where she had made it plain that you were not welcome. You did so, with the intention of committing an offence involving an assault. The rape charge and the assault charge, where you purported to assist the victim in moving her washing machine involved a level of violence and force and were committed after you had stalked the victim and she had made it plain to you that she was distressed by your advances towards her. The victim was also particularly vulnerable when you raped her as she was suffering from her injured coccyx at the time. While I will sentence you on the basis that that act of penetration may only have been for a very short period; it is totally unacceptable that any person should be subjected to such physical violence intended to make them comply with unwanted sexual advances. It is understandable that the victim stated that she felt like you treated her as a toy and that later she had a sense of helplessness when you advanced upon her in the shower.

52In relation to the stalking, I am not satisfied that you intended to make the victim feel frightened or apprehensive about her own safety. I accept that your immaturity and self-indulgence is consistent with you having little if any regard to how your actions were impacting upon the victim.  I will sentence you on the basis that you ought to have understood that your actions would have made the victim feel frightened or apprehensive about her own safety.

53Mr Oakenfull, as I have referred to above, the objective gravity of your offending is very serious. Your offending was contemptuous of the victim’s rights. You completely ignored her feelings and subjugated her physically in order to satisfy your own desires of sexual gratification.

54In sentencing you I must be mindful of the totality principle and carefully consider the totality of your offending in relation to the total effective sentence. The offending does engage considerations of both general and specific deterrence and the need to denounce this type of offending in the strongest terms. I must balance these considerations with the importance of rehabilitation which as I have stated is especially important given your youth and immaturity at the time you offended.

55I am of the view, particularly as you have not reoffended over the last six years, that your prospects of rehabilitation are reasonable. It is for that reason that I am prepared to impose what might be considered as a longer than normal period of eligibility for parole.

56In balancing the various purposes of sentencing and having regard to all relevant matters, the material placed before me and the submissions of the parties, I have determined that the appropriate sentence to be imposed upon you is as follows:

57On charge 1, stalking you are convicted and sentenced to 6 months imprisonment.

58On charge 2, aggravated burglary you are convicted and sentenced to 2 years and 4 months imprisonment.

59On charge 3, rape you are convicted and sentenced to 3 years and 8 months’ imprisonment. This is the base sentence.

60On charge 6, assault with intent to commit a sexual offence, you are convicted and sentenced to 14 months imprisonment.

61On charge 7, aggravated burglary, you are convicted and sentenced to 2 years and 6 months imprisonment.

62On charge 8, assault with intent to commit a sexual offence, you are convicted and sentenced to 20 months of imprisonment.

63I further declare that 2 months of the sentence imposed on charge 1, 3 months of the sentence imposed on charge 2, 5 months of the sentence imposed on charge 6, 10 months of the sentence imposed on charge 7, and 6 months of the sentence imposed on charge 8 be served cumulatively upon charge 3 and all other sentences imposed this day.

64That makes a total effective sentence of 5 years and 10 months imprisonment. I further declare that you serve a period of 3 years and 8 months before being eligible for parole.

65Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) I declare that the period of 107 Days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.