Director of Public Prosecutions v Parish
[2023] VCC 758
•15 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02259
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES PARISH |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2023 | |
DATE OF SENTENCE: | 15 May 2023 | |
CASE MAY BE CITED AS: | DPP v PARISH | |
MEDIUM NEUTRAL CITATION: | [20##] VCC | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Rape - Common Assault - Persistently contravening a family violence order - Serious examples of the offences of rape and assault - Digital penetration - Strangling - Acts committed in presence of infant child - Profound breach of trust - Accused self-represented at the plea hearing - Moderate-high risk of sexual recidivism - Complex psychological profile - Strong family support
Legislation Cited: Crimes Act1958; Family Violence Protection Act 2008; Sentencing Act 1991
Cases Cited: Clarke (a pseudonym) v DPP [2022] VSCA 29; Director of Public Prosecutions v Mokhtari [2020] VSCA 161; Jurj v The Queen [2016] VSCA 57 at [80]; Brown v The Queen [2019] VSCA 286; Flynn (a pseudonym) v The Queen [2020] VSCA 173; R v O'Rourke [1997] 1 VR 246; Shrestha v The Queen [2017] VSCA 364
Sentence: Total effective sentence of 7 years and 9 months’ imprisonment with a non-parole period of 4 years and 9 months – s 6AAA declaration - 10 years and 6 months’ imprisonment with a non-parole period of 6 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | In person | N.A. |
HIS HONOUR:
1James Parish, you have pleaded guilty to the following offences:
(i) Two charges of rape contrary to s 38(1) of the Crimes Act 1958. The maximum penalty for the offence of rape is 25 years’ imprisonment. I note that one of these charges is a rolled-up charge which comprises three separate instances of penetration.
(ii) One rolled up charge of common assault contrary to common law. The maximum penalty for this offence is 5 years’ imprisonment;[1] and
(iii) One charge of persistently contravening a family violence order contrary to s 125A of the Family Violence Protection Act 2008. The maximum penalty for that offence is 5 years’ imprisonment or a fine of 600 penalty units or both.
[1] Section 320 of the Crimes Act 1958.
2The victim of your offending was your then partner, Rebecca Marcus,[2] who was 33 years old at the time that you committed these crimes upon her.
[2] A pseudonym.
3However, before I summarise your offending, and for reasons that will soon become clear, I wish to record the Court’s gratitude to Ms Joosten of counsel and Ms Colliver from Victorian Legal Aid for their considerable assistance in the preliminary conduct of this matter.
4It is necessary to explain a little of the background.
5On 13 February 2023 you were arraigned before Judicial Registrar Wilson.[3] You pleaded guilty to all four charges on Indictment N11098396. Your case was listed for a plea hearing on 5 April 2023 at 10.30 am.
[3] The arraignment was ‘short form’. The prior convictions were not put to the accused.
6Your lawyers filed detailed Sentencing Submissions dated 29 March 2023 on your behalf. The submissions were prepared by Ms Joosten of counsel.
7The submissions referred to letters of support and a report of Dr Mathew Barth, psychologist, dated 24 March 2023.
8Nelson Brown Legal, your solicitors, also filed letters from your treating clinical psychologist, Ms Ana Torres, and your treating psychiatrist Dr Jaya Reddy.[4]
[4] Report of Dr Jaya Reddy dated 2 March 2021.
9On 4 April 2023, Mr Nelson Brown emailed the court and advised that after conferring with your lawyers on 3 and 4 April 2023, you instructed Nelson Brown and Ms Joosten to no longer act for you in this matter. Mr Brown informed the court that he had referred you to Victoria Legal Aid and that Ms Joosten would appear as amicus to assist the court.
10On 5 April 2023, Nelson Brown filed a Notice of Ceasing to Act with the court.
11On 5 April 2023, when the matter was called on, Mr Daryl Brown appeared for the prosecution. Ms Joosten announced her appearance as amicus to assist the court.
12I expressed my concern that you were facing serious charges and that, while you were entitled to represent yourself, the experience of the court in such matters is that being legally represented is of benefit to an accused person. I stood the matter down for 30 minutes at 11.00 am for a representative of Legal Aid Victoria to attend court and provide you with advice.
13At 11.28 am the court received an email from Mr Collins-Putland, Managing Lawyer, Indictable Crime, Victorian Legal Aid. Mr Collins-Putland informed the court that Ms Joosten had contacted Legal Aid to ask if you could be provided with some advice at court. He stated that Ms Elizabeth Colliver, a member of his team, would attend court for this purpose.
14I stood the matter down until 2.00 pm for this to occur.
15At 1.24 pm, Ms Colliver emailed the court to inform me that:
(i) she had advised you of the importance of legal representation in the circumstances;
(ii) she had explained the process of completing a Legal Aid application to ensure your matter could be funded and that you could be appropriately represented;
(iii) you had advised her that you wished to represent yourself in court;
(iv) if you change your mind, Victoria Legal Aid was happy to assist you; and
(v) she would appear at 2.00 pm to assist the court and that you were content for her to do this.
16At 2.20 pm the court re-convened. The arraignment was completed. I thanked Ms Joosten and Ms Colliver for their assistance and excused them from further appearing.
17You confirmed from the dock that you wished to proceed unrepresented and that you wanted to read some biblical passages to the court, which I allowed you to do.
18The reports filed by your former lawyers indicate that you have a history of mental illness. You have been treated for Depression and other illnesses since 2019. Because of this, I was concerned to ensure that you were in a position to make an assessment of what is in your best interests.
19In this regard I have taken into account the opinion of Dr Barth, an experienced forensic psychologist. According to Dr Barth, who saw you on 3 occasions in early 2023, you are pre-occupied with religious themes ‘although there was no evidence that this is at delusional proportions’. Dr Barth described you as ‘lucid and oriented throughout the consultations’. You exhibited no active symptoms of psychosis or thought disorder. Dr Barth opined that your reality testing and moral reasoning are both unimpaired and ‘there is no evident defect in [your] capacity to appreciate the nature and consequences of [your] actions’. Your intelligence falls into the normal range.[5]
[5] Para [40].
20In light of this opinion, I considered that it was appropriate to proceed to sentence you without obtaining a further report about you from Forensicare.
21I asked you if you wanted the court to take into account the materials in mitigation that had been filed by your former lawyers. Eventually you informed me that you wanted me to take that material into account which I have done.
22Mr Darryl Brown read the Summary of Prosecution Opening to the court. You read some quotations from the Bible to the court. You also informed the court that you may provide some further letters of support. At the conclusion of the hearing I reserved my decision on the appropriate sentence to impose for four weeks until 8 May 2023 to enable you to file any further material you wanted to. The court received a number of character references which I have read. In court today you provided the court with two further references which I have considered.
23On 8 May 2023 the matter was administratively adjourned until 15 May 2023.
Background
24At the plea hearing, you accepted that the Summary of Prosecution Opening dated 31 March 2023 was an accurate summary of your offending. As a result, you are to be sentenced on the factual basis outlined in this document.
25At the time of this offending, you had been in a relationship with Ms Marcus for nearly two years, and the two of you were living together.
26You had met Ms Marcus in July 2020, when she responded to an advertisement which you placed online for a tenancy vacancy at the house at which you were living in Burwood. At that time, she was in Australia on a student visa and was studying full time for a master’s degree. Ms Marcus moved into the premises and the two of you formed a close friendship, which soon developed into a sexual relationship.
27Initially, your relationship with Ms Marcus was a happy one. As the relationship progressed, however, you began to display controlling and jealous behaviours, and developed a paranoia that she was cheating on you.
28In mid-2021, Ms Marcus became pregnant to you. She applied for a spousal visa so that her pregnancy would be covered by Medicare and the two of you made plans to marry after the child was born.
29Ms Marcus’s mother arrived in Australia in early March 2022 to help her daughter with the impending birth of her baby and to help her look after the house. On the 21st of March 2022, Ms Marcus gave birth to your daughter.
30In the period leading up to and following your daughter’s birth, your relationship with Ms Marcus became strained. During an argument on the 18th of April 2022, you threw a pillow at Ms Marcus’s face, and she picked up your daughter and went to sleep in another room.
Offending
31Two days after this incident, on the 20th of April 2022, Ms Marcus’s mother was booked on a flight to return home. Arrangements had been made for you to be home to drive Ms Marcus and her mother to Tullamarine Airport. However, you didn’t arrive home in time, and so Ms Marcus called an Uber to take them to the airport.
32You were not present when Ms Marcus arrived home at around 9.30 pm. When you arrived back at the house shortly afterwards, Ms Marcus could smell alcohol on your breath, and you told her that you had been at a bar drinking shots. After you and Ms Marcus put your daughter to bed, you discussed your marriage plans, and you said something to Ms Marcus to the effect that you were glad that her mother had left, because you wanted to rape her.
33Ms Marcus told you that she didn’t want to discuss your marriage plans and went to have a shower. While she was showering, you tried to get into the bathroom and asked her where her mobile phone was. Ms Marcus said that she would get her phone after she had finished showering, but you screamed at her, unhooked the latch and opened the door, and entered the bathroom. Ms Marcus got out of the shower and got dressed, and you followed her into your shared bedroom.
34You started slapping and hitting your own face, and Ms Marcus approached you and attempted to calm you, asking you to stop hurting yourself. In response, you called her a ‘slut’; ‘a bitch’; and a ‘piece of shit’.
35You then grabbed Ms Marcus’s arm and pushed her down towards the floor, using your free hand to pull her pants and underwear down. She fell to the ground, and you put a hand on her buttocks and began to penetrate her anus with one of your fingers. Ms Marcus screamed at you to stop and attempted to push you away, but you continued to penetrate her anus with your finger (Charge 1 – Rape).
36Ms Marcus then attempted to get up and move towards the bed. When she stood up, you grabbed one of her legs, causing her to fall to the ground and hit her head.
37You finally managed to wrestle Ms Marcus onto the bed. You were on top of her; she was lying on her back, struggling against you. You hit her on the face with the side of your hand, placed your hands around her neck, and started to strangle her (Charge 3 – Common assault).
38When Ms Marcus relaxed her body, you stopped strangling her. You then began to record her on your phone. In one of the video recordings later handed to the police, Ms Marcus is seen lying on her back, with blood on her nose, cheeks, and mouth. You are lying on top of her and aggressively questioning her, asking for the name of the man with whom you believed that she was having an affair. You recorded your face in the video and can be heard accusing her of punching you in the face. Ms Marcus can be heard screaming, ‘Jimmy don’t do that’ and ‘Jimmy, you rape me’. At some stage, you resumed penetrating her anus with your fingers (Charge 1 – Rape).
39Although the chronology is not clear, at some point you also penetrated her vagina with your fingers. Ms Marcus was still recovering from the birth of her daughter the month before, and this penetration caused her significant pain (Charge 2 – Rape).
40You placed your fingers into her mouth; she could taste faeces on your fingers. While you were doing this, you said things such as, ‘why are you doing this to me?’; ‘tell me who he is’; and, ‘you smell like sheep shit’. You also spat in Ms Marcus’s face and continued to place your fingers into her anus while lying on top of her. This lasted for approximately ten minutes (Charge 1 – Rape).
41In another of the videos handed to police, you are recorded again repeatedly questioning Ms Marcus ‘What is his name?’ and calling her a liar. She can be heard denying that she had been unfaithful, and trying to calm you down. You are recorded telling her that she ‘smells like sheep shit’ and ordering her to go outside.
42Once outside, Ms Marcus ran to a nearby house and asked a neighbour if they could call the police. She then returned home to wait for the police to arrive.
43The police arrived shortly afterwards, and you were arrested, taken to the Box Hill Police Station, and served with a Family Violence Safety Notice. As the Notice prohibited you from returning to the family home, the police took you to a men’s crisis accommodation facility in Croydon.
44Meanwhile, after you were removed from the house, Ms Marcus disclosed to a female police officer that you had digitally raped her. She was conveyed to the Monash Medical Centre and medically examined. The treating doctor observed a number of grazes and abrasions on her face and body; swelling and redness of her clitoral hood; lacerations between her Labia Majora and Labia Minora; and a vertical laceration of her Fossa Navicularis with active bleeding surrounding by an area of abrasion.
45When Ms Marcus returned home from the medical centre, she found your mobile phone and located the videos that you had recorded during the incident. The videos were subsequently handed to the police.
46On 3 May 2022, the police obtained an Interim Family Intervention Order against you on behalf of Ms Marcus. The conditions of both this order and the Family Violence Safety Notice prohibited you from contacting her.
47Between 3 May 2022 and 15 May 2022, you sent a number of text messages to Ms Marcus. In some of the text messages, you informed her that you were in Perth, mentioned that you were seeing a psychologist, and requested photographs of your daughter. However, in one message you referred to the incident the subject of these charges and threatened to have Ms Marcus deported if she continued with the allegations. In that context, you reminded her that your daughter was an Australian citizen.
Investigation, Arrest and Record of Interview
48On 31 May 2022, you were again arrested by police and taken to the Box Hill Police Station. You participated in a record of interview in which you told police that, when you first met Ms Marcus, your relationship was strong and beautiful and that you loved her. You denied raping her, and stated that you were under the impression that all of the conduct was consensual. You told police that you had penetrated her anus with your finger, but denied penetrating her vagina.
49You stated, however, that you could not remember Ms Marcus saying anything to you that indicated that she was consenting to your conduct, and admitted that your perception may have been affected by the alcohol you had consumed. You also denied the allegations that you assaulted Ms Marcus or were verbally abusive to her.
50With respect to the allegation that you had breached family violence notices and orders by contacting Ms Marcus, you told police that you believed that the orders did not prevent you from contacting her.
Objective Gravity
51The events of 20 April 2022 occurred one month after Ms Marcus gave birth to your daughter. Ms Marcus was still recovering from the birth. This is an aggravating feature of the offending, and especially Charge 2, the vaginal rape.
52The three separate anal rapes that have been rolled up into Charge 1 are serious examples of this type of offending. You inserted more than one finger into the Ms Marcus’s anus causing her pain and discomfort. On the third occasion your conduct lasted for about 10 minutes.
53The complainant’s victim impact statement states that she has haemorrhoids and some parts of her anus ‘are never going to be the same without surgery’.[6] She states that the injuries ‘are making me feel ashamed about getting into an intimate relationship with anyone else’.
[6] VIS dated 31 March 2023, p 4.
54The assaults that make up charge 3 are also serious examples of this type of offending. You placed the fingers that had been in the complainant’s anus into her mouth. She could taste her own faeces. You hit the complainant in the face and choked her until she started to run out of breath. Your conduct was particularly degrading accompanied as it was by spitting in the complainant’s face and telling her she ‘smelt like shit’.
55Your offending occurred in the family home in the presence of your infant daughter. This was a place where the complainant should have felt safe. Instead she was terrorised by you because you believed she was having an affair with another man.
56Charges 1 and 2 are clearly the most serious offences. Rape in all of its forms is an inherently serious offence, as indicated by the maximum penalty of 25 years’ imprisonment. The rapes that you committed against Ms Marcus, the mother of your child and your then partner, were brutal, violent, and degrading acts which have inflicted enduring damage upon her.
57The law does not distinguish between digital penetration of the kind that you committed and penile penetration.
58As the Court of Appeal said in Director of Public Prosecutions v Mokhtari:[7]
The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.[8]
[7] [2020] VSCA 161.
[8] Ibid, [41].
59Further, as the Court of Appeal stated in the recent case of Clarke v DPP, the crime of rape ‘covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity.’[9]
[9] Clarke (a pseudonym) v DPP [2022] VSCA 29 at [28].
60Charge 2, consisting as it does of three separate instances of anal rape, is the more serious of the two rape charges. Three separate instances of rape are rolled up. I accept that a number of the aggravating features identified by the Court of Appeal in Jurj[10] are not present. The victim was not vulnerable as a result of intoxication or mental impairment; there was little if any premeditation; and it created no risk of pregnancy. However, that the rapes occurred within an intimate relationship and represented a profound breach of trust are clearly aggravating.[11] It is also aggravating that you had relevant prior convictions and were a registered sex offender.
[10] Jurj v The Queen [2016] VSCA 57 at [80].
[11] Clarke v The Queen [2022] VSCA 89 at [31].
61I have explained above why the assaults you committed were serious examples of this offence. They involved violent degrading behaviour calculated to humiliate the victim. They are deserving of condemnation in strong terms.
62Finally, I consider Charge 4 to be towards the lower end of the range of seriousness of the offence of persistently contravening a Family Violence Order.
63The Order prohibited contact with Ms Marcus but permitted you to ‘negotiate child arrangements by text message’.[12] You were in Perth and Ms Marcus was in Melbourne. The offending was for a relatively brief period of less than 2 weeks. It consisted of sending 14 text messages most of which were merely requests to see photos of your daughter. You also sent some non-threatening emails to Ms Marcus between 6 and 15 May 2022 in breach of the Order.
[12] Certified Copy of Family Violence Interim Intervention Order granted on 03/05/2022.
64The prosecution summary states that you sent ‘text messages [that] referred to the incident and threatened to have [Ms Marcus] deported if she continued with the allegations against [you]’.[13]
[13] Summary of Prosecution Opening dated 31 March 2023, [27].
65However, I consider that only one message can be characterised as threatening. In it you wrote:
Your time is running thin. You should not do this, you assaulted me and assault causing injury will get you deported. The partner visa is to be with the partner. If we are no longer an item you are no longer Australian.[14]
[14] Depositions, page 181.
Victim Impact
66Ms Marcus completed a detailed and very moving Victim Impact Statement dated 31 March 2023. In it she eloquently and movingly describes the devastating impact of your crimes. It is apparent that these effects are profound and will be long-lasting.
67Your offending caused a large number of injuries to Ms Marcus. According to the VIS, in addition to her physical injuries, she has difficulty sleeping, eating, socializing, working and studying. She avoids and is very careful with males and does not think she will be able to find someone with whom to have a relationship.
68Ms Marcus explains that she thought that you would marry and raise a family together. Now she is raising your daughter on her own in her adopted country with little support.
69It is significant that Ms Marcus apparently feels no bitterness towards you and wants you to recover. However, she is afraid of the impact you may have on your daughter if you get closer to her.
70In sentencing you, I have taken into account the impact of your offending on Ms Marcus. I have also taken into account the likelihood that your daughter may have little contact with her father.
Personal Circumstances
71I now turn to discuss your personal circumstances.
72You were born in 1988 as the oldest in a sibship of three; you were 33 years old at the time of the offending.
73You were raised in the south-eastern suburbs of Melbourne. You describe your childhood as relatively positive, reporting a very close relationship with your mother.
74In 2001, when you were 13, your mother was diagnosed with breast cancer. She began a lengthy period of intensive treatment, ultimately entering remission. However, she passed away suddenly from a heart attack in 2015. You have reported to Dr Matthew Barth, forensic psychologist, whose report dated 24 March 2023 is in evidence before me,[15] that you have struggled to properly process this grief. That is also the view of your father who wrote the court a letter.
[15] Psychological Report of Dr Matthew Barth dated 24 March 2023, [12].
75Following your mother's death your relationship with your father and siblings became strained; these relationships have continued to deteriorate. You have expressed your desire to reconcile these relationships in the future, and have maintained some contact with your family whilst in custody.
76You were involved in several long term intimate relationships prior to meeting Ms Marcus, the longest of which lasted for approximately three years. Your relationship with Ms Marcus ended when you committed this offending.
Education and Employment
77You attended Glen Huntly Primary School and later completed your education at Brighton Secondary College and Sandringham Secondary College. You were a below average student and struggled with behavioural and social issues.
78You had difficulty maintaining stable employment, working a series of short periods in different occupations. You report that this is partly due to your mental health concerns.
79You have completed a Certificate III and IV in personal training. At the time of the offending you were completing a Bachelor of Nutritional Science. While on remand you have completed a Certificate III in Business.
Alcohol and Drug Use
80You began drinking alcohol at 17 and would binge drink heavily on weekends. You continued binge drinking through your twenties before reducing your alcohol consumption in your thirties. Your former counsel, Ms Joosten, submitted that you completed an episode of Alcohol and Drug Counselling Treatment with Turning Point Eastern Treatment Services, and have been largely abstinent from alcohol since that time.[16] Unfortunately, at the time of this offending, you had relapsed, and were heavily alcohol affected.
[16] Psychological Report of Dr Matthew Barth dated 24 March 2023, [20].
81You began using cannabis as a late teenager and remained a regular user for several years. Your cannabis use decreased in 2018 and you have used cannabis sporadically since this time.
Mental Health
82The court has before it a letter dated 2 March 2021 from your former treating psychiatrist, Dr Jaya Reddy. Dr Reddy saw you on numerous occasions between August 2019 and February 2021 and diagnosed you with Attention Deficit Hyperactive Disorder, comorbid anxiety and depressive disorder and Post Traumatic Stress Disorder. Dr Reddy prescribed certain medication and recommended ongoing sessions with himself and a psychologist.
83As noted earlier in these reasons, your former solicitors had you assessed for the plea by forensic psychologist, Dr Barth. After setting out your personal history and noting your generally unremarkable childhood in a supportive family, Dr Barth reports that you told him that your offending ‘occurred during a period when the relationship with Ms Marcus was very chaotic, [you] had suspicions that she was having contact with another man, [the two of you] were having financial problems and [you] were feeling overwhelmed with fatherhood’.[17]
[17] Ibid, [35].
84Dr Barth diagnosed you with Major Depressive Disorder superimposed on Prominent Traits of Borderline Personality Disorder. He concludes that you require specialist intervention for individuals who have committed a violent sexual offence. Dr Barth outlines the necessary focus of such treatment at para [52] of his report. I direct that a copy of Dr Barth’s report be provided to Corrections Victoria with these reasons for sentence to inform your future management.
85Dr Barth assessed your risk of recidivism and concluded that you have a moderate-high risk of sexual recidivism. I accept this opinion based as it is on the violent nature of your offending involving verbal threats, that your behaviour was ‘underpinned by a sense of sexual entitlement’, your poor insight into your offending conduct, your history of chaotic relationships, your ‘sexually violent thoughts … towards the complainant on the night of the offending’ and your ‘past failure to comply with supervision/monitoring measures’.[18]
[18] Psychological Report of Dr Matthew Barth dated 24 March 2023, [47].
86In mitigation of risk, Dr Barth notes that your offending was committed over a very brief period, there was no diversity in your offending conduct and you have no psychopathic traits.[19]
[19] Ibid, [49].
87Finally, Dr Barth opines that ‘there is a risk that [your] mental state could deteriorate in the period immediately after sentencing’.[20]
[20] Ibid, [53].
88Your former counsel submitted that Verdins[21] limbs 5 and 6 are enlivened in light of this evidence.[22] The case of Verdins stands for the proposition that an offender’s mental health it to be taken into account by a sentencing court in certain circumstances. The prosecution submissions concede the point.[23]
[21] R v Verdins (2007) 16 VR 269
[22] Defence Submissions for Plea Hearing dated 29 March 2023, [36].
[23] Prosecution Submissions on Sentence dated 4 April 2023, [5].
89I accept that in light of your lengthy history of serious mental illness both that imprisonment will weigh more heavily on you than on a person in normal health and that it is likely that your condition will worsen in prison given that you are unlikely to receive the standard of treatment and support that you have been receiving. I have therefore moderated your sentence to a small degree.
Other matters of mitigation
90Your plea of guilty is significant as it is some evidence of your remorse and has the utilitarian benefit of saving Ms Marcus from having to give evidence at trial. There is an added benefit due to the ongoing effect of the pandemic on the backlog in this court.[24] However, the discount to which you are entitled is reduced because you had a contested committal hearing at which Ms Marcus was cross examined.
[24] Worboyes v The Queen [2021] VSCA 169.
Prospects of Rehabilitation
91You are 34 years of age with the bulk of your life ahead of you. Your history of criminal offending dates back to 2018 when you were found guilty of sexual assault of a child under 16 by touching. Your case was adjourned for 2 years without conviction on condition that you engage in counselling with your psychologist and undertake treatment as recommended. You were registered for a period of 8 years under the Sex Offenders Registration Act.
92In 2021 you were found guilty of contravening the release on adjournment order which was confirmed without conviction. At the same time you were found guilty of failing to comply with your reporting obligations and convicted and sentenced to a 12 month Community Correction Order (‘CCO’).
93In May of 2021 you were convicted and sentenced to a further CCO of 10 months for contravening an interim personal safety intervention order. In April 2022 you were imprisoned for 5 days for failing to comply with your reporting obligations.
94The instant offending occurred shortly after the two CCOs expired.
95Your history of offending was part of the reason for the risk assessment completed by Dr Barth.
96You expressed remorse and shame to Dr Barth for your offending conduct. This is consistent with the views expressed in a number of the letters of support that the court has received from your family and friends. You provided a brief letter dated 30 March 2023 to the court in which you ask Ms Marcus to accept your apology. I accept that you are genuinely remorseful and have taken this into account in assessing your prospects of rehabilitation.
97The letters received by the court from your father, your siblings and your friends express grave concern for your future wellbeing. In each case the authors express their strong desire to support you both during any period of incarceration and once you are released. You are fortunate to have this level of support available to you.
98Taking all of the above into account I cannot assess your rehabilitation prospects as any better than fair.
Sentencing Principles
99The sentence I impose in this case must be aimed at achieving both general and specific deterrence. Men who are tempted to resort to violence against intimate partners must be deterred by the knowledge that they will face severe punishment. Your history of offending and the personality features identified by Dr Barth mean that you must be specifically deterred from future offending. Non-custodial sentences have not deterred you in the past.
100Protection of the community and denunciation are also important sentencing considerations.
101The sentence I impose must recognise the harm you have done to Ms Marcus.
102The crime of rape is a category 1 offence. Therefore, I am required to impose a sentence of imprisonment on you.[25]
[25] Sentencing Act 1991 s 5(2G).
103Rape is also a ‘standard sentence offence’. The ‘standard sentence’, which is 10 years’ imprisonment, is the appropriate sentence for the middle range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence.[26] This is but one of a number of considerations to which the court must have regard along with the maximum penalty of 25 years and all other relevant considerations.[27]
[26] Ibid, s 5A(1)(b).
[27] Brown v The Queen [2019] VSCA 286.
104In your case I have imposed sentences on Charges 1 and 2 which are less than the standard sentence having regard to my assessment of the objective seriousness of your offending, your plea of guilty, your mental illness and the likely effect on you of incarceration, and your expressions of remorse.
105Further, s 11A of the Sentencing Act 1991 requires the court in your case to fix a non-parole period of at least 60% of the total effective sentence unless the court considers it to be in the interests of justice not to do so.
106The principle of totality requires the court to impose a sentence in relation to each of the charges and then make orders in respect of cumulation and concurrency so that the total effective sentence appropriately reflects your overall criminality. In this case, as your former counsel submitted, the offending giving rise to charges 1-3 all occurred during a relatively brief period of time and is appropriately characterised as a ‘single transaction’.[28]
[28] Flynn (a pseudonym) v The Queen [2020] VSCA 173 at [108]- [130].
107In such a case, the Court of Appeal has explained that ‘… a sentencing judge should always strive to impose the sentence that is appropriate to each charge in a multi-charge indictment. The judge should deal with the principle of totality by making appropriate orders for cumulation. In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim’.[29]
[29] Flynn (a pseudonym) v The Queen [2020] VSCA 173, [130].
108As the Court of Appeal said in R v O’Rourke:[30]
‘[T]here are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency.’
[30] [1997] 1 VR 246.
109In determining the appropriate sentence in respect of charges 1 and 2, I have taken into account what was said by the Court of Appeal in 2017 in Shrestha v The Queen,[31] about the need for an upward adjustment in sentences for offences of digital rape committed in circumstances of violence. I have also taken into account the standard sentence of 10 years.
[31] [2017] VSCA 364
110Finally, the court is limited in its consideration of current sentencing practices to sentences that have been imposed under the standard sentencing regime.[32] No such cases were referred to the court. Nonetheless, I have examined a number of cases where sentences were imposed for digital rapes and have found them helpful in understanding the applicable sentencing range.[33] I have taken into account that in some of these cases, sentence was imposed after a jury verdict.
[32] Sentencing Act s 5B(2)(b).
[33] Salvaggio v The Queen [2022] VSCA 88 (8 years for a single instance of digital rape after jury verdict upheld but described as ‘undoubtedly stern’); Babar v The Queen [2022] VSCA 122 (5 years after a plea of guilty upheld but described as ‘lenient’); Cao v The Queen [2018] VSCA 98 (8 years after a plea of guilty upheld); see also Wright v The Queen [2021] VSCA 243 and Samuels (a pseudonym) v The Queen [2019] VSCA 14.
Orders
111On Charge 1 of rape, you are convicted and sentenced to 7 years’ imprisonment.
112On Charge 2 of rape, you a reconvicted and sentenced to 6 years’ imprisonment.
113On Charge 3 common law assault, you are convicted and sentenced to 18 months’ imprisonment.
114On Charge 4 persistent contravention of a family violence notice, you are convicted and sentenced to 6 months’ imprisonment.
115The sentence on Charge 1 is the base sentence.
116Six months of the sentence on Charge 2 is to be served cumulatively on the base sentence.
117Three months of the sentence on Charge 3 is to be served cumulatively on the base sentence.
118The sentence on Charge 4 is to be served wholly concurrently.
119The total effective sentence is 7 years and 9 months.
120I set a non-parole period of 4 years and 9 months.
121Pursuant to s 18 of the Sentencing Act 1991, I declare that the period of 349 days not including today you have spent in custody in respect of these charges be reckoned as pre-sentence detention.
122Pursuant to s 6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of 10 years and 6 months with a non-parole period of 6 years and 8 months.
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