Director of Public Prosecutions v Parker (a pseudonym)

[2020] VCC 583

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES PARKER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 May 2020
CASE MAY BE CITED AS:	DPP v Parker (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 583

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For the Accused	Mr J. Desmond

HIS HONOUR: 

1Charles Parker[1], you were found guilty by jury verdict of four charges of rape.  Upon the same indictment, you were acquitted of a charge of anal rape, Charge 4. 

[1] A pseudonym

2The rapes of which you were found guilty occurred on 26 November 2017 at Melbourne on a single occasion.  An outline of the circumstances of the offending will suffice for purposes of the sentence, which I will set out.

3You were 41 years of age at the time of the offending.  You were living at an apartment on Elizabeth Street, close to Flinders Street railway station in central Melbourne. 

4The victim in this matter I shall refer to by way of the letter 'K'.  For reasons of anonymity and privacy considerations, I will anonymise the sentence before it is published.  The sentence will bear a pseudonym for your name as well. 

5K was 19 years of age at the time of the offending.  On 24 November 2017, she and a friend, to whom I shall refer by letter 'M', flew into Melbourne from interstate.  They were to attend a concert on the weekend and further acquaint themselves with Melbourne, as they intended to move here in the near future. 

6K and M had booked four nights in the central accommodation at your apartment, which you hosed as an Airbnb.  You were described as a 'super host', that being a host with many positive referrals on the Airbnb internet application designed to confer trust, respectability and security to the premises hosted.  They arrived at 11 am on the 24th and you met them at the apartment, which is where the rooms were at which they had booked.  The rest of the apartment was your residence.  They were given a key and asked to make themselves at home by you. 

7That day, a Friday, the two young women went shopping, returned to the apartment with a bottle of vodka, which they had purchased, together with two bottles of lemonade.  You were present when they returned.  As they prepared to go out, you conversed with them.  A friend of yours arrived that evening. 
A friend of K and M's also arrived, and drinks were drunk in the kitchen, before leaving at 11.30 pm.  You invited them to wake you when they returned to continue drinking.  They returned at about 4 am and did not wake you. 

8On the following day, the Saturday, for most of the day, they went out and returned about 6 pm, having bought another vodka bottle, some lemonade and water.  They started to get ready to go out, when you returned to the apartment and again invited them to wake you upon their return, so that you could keep drinking and partying. 

9A friend of yours had arrived.  After going to the rooftop briefly, K and M returned to the apartment and at that time, K started to feel ill.  She was affected by alcohol, which they had both consumed before heading out.  she went into the bedroom and lay on the bed and threw up into a bucket.  She remained on the bed as she felt unwell.  M left with you and your friend.  Photos had been taken at that time and were tendered, showing K dressed to go out, but on the bed apparently unwell. 

10You your friend and M went nearby to a bar on the Yarra near the station, which your friend soon left to catch a train.  When M and you returned, K had thrown up on the bed, which was cleaned by you and M.  K was now on the couch in the lounge room, where while clearly still affected by alcohol, she threw up again.  You went and sat near her on the couch and M went to bed.  Later, M heard you play a song and take some footsteps towards your bedroom. 

11Sometime later, the victim came to in the toilet.  She was on her knees and her head was over the bowl.  She could not recall getting there.  You were there with her.  She said she wanted to go to bed and sleep.  You carried her to your bed, K felt very weak, disoriented and uncoordinated.  She drifted off once on the bed.  At some point soon thereafter, she felt you come over on top of her and past her to her back and you tried to roll her over onto her back.  She told you she was feeling sick and did not want to roll over. 

12While she was saying 'no', you took off her underwear.  She told you to leave her alone and not to touch her.  She was drifting in and out of consciousness, but she felt you licking her vagina, as she repeated the words 'no'.  You then penetrated her vagina with your fingers.  You then went on top of her and penetrated her vagina with your penis, while she was endeavouring to push you away, but could not. 

13You then again licked her vagina and again inserted your fingers in her vagina.  You then placed your knees next to her shoulders with your penis near her face and asked her to suck your penis, while she refused and turned her face away.  At this, you again penetrated her vagina with your penis.  K then managed to lift a leg sufficiently to push you off her.  She grabbed her underwear and went to M's bedroom, where she complained to M that you had raped her. 

14The first person contacted was K's mother, interstate and her brother by text.  Both K and M then hurriedly left the apartment and waited for police to arrive, having called 000 at the time of the text messages to K's brother. 

15Soon after 2 am, police arrived.  K complained of the rapes and was in some pain to her vagina and was taken to be examined at a hospital.  A forensic medical examination found that she had suffered a five to 10 millimetre abrasion to the vaginal vestibule, a 10 millimetre abrasion to the fossa vernacular in the vaginal canal and a two millimetre laceration to the posterior fourchette, due to blunt trauma.  Her blood and urine samples later yielded the presence of alcohol and evidence was received of a range at the relevant time between .12 and .237 per cent. 

16You were arrested at about 3.15 am that morning, taken to Melbourne police station and interviewed at about 8 am.  You asserted that when you had told K, while on the couch, that you were going to bed, that K had said she was coming with you and that it was she who had initiated contact with you, which led to consensual intercourse.  The jury clearly rejected that version.  You said no condom was used and that you had not ejaculated, but that you had asked her if she was all right with the sexual contact and that she had said 'yes', but that when she changed her mind and told you to stop, you had immediately withdrawn, again an assertion, which given their verdict, the jury must have rejected, while accepting the evidence of K to found their verdicts.

17You had had three to four glasses of red wine to drink and some beer, you told the police that night, but you said you were fine, though tired.  A buccal swab for a biological sample was obtained from you and later analysis to compare with a sample taken from K's perianal area, you were not excluded and the DNA evidence was that that it was a high likelihood that the sample was taken included you as a contributor.  The toxicology report was received in
mid-January 2018 and you were formally charged in March 2018.  You were bailed in June 2018.  The contested committal proceeded in November 2018 and witnesses were cross-examined.  A trial proceeded in December of 2019 and you were remanded in custody. 

18Can I just pause there and ask for an agreed pre-sentence detention period please? 

19MS DUCKETT:  Of course.  It is 148 days.  Effectively four months and 26 days.

20HIS HONOUR:  Is that excluding today?

21MS DUCKETT:  Exclusive, yes, Your Honour. 

22HIS HONOUR:  Thank you. 

23An adjournment was sought to obtain psychological material for a plea, which proceeded in March 2020.  There is no additional and consequential punishment assigned to any part of this sentence because the prosecution was put upon its proof in a trial.  However, as no doubt has been explained to you, the guilty verdict upon a not guilty plea means you lose any reduction in sentence by way of a plea of guilty and whatever remorse may have accompanied that plea.  Indeed, as I comprehend your position and the material tendered, you maintain your innocence of these matters. 

24Victim impact statements were received by the court.  They were powerful and dignified statements which attested to the damage and trauma your conduct has caused.  K read out her statement to the court.  As I indicated, at the time of the plea, its contents will be taken into account as a relevant and important matter.  In that statement, K notes the time this matter has taken to conclude and the physical and psychological impact of it upon her which persists and are likely to be felt for a very long time.  She has experienced deep
self-disappointments, severe anxiety and suicidal thoughts, her sense of trust in others and her relationships has been damaged irreparably and a sense of physical violation has changed her perception of herself.  Her integrity has been broken. 

25She had to move from one state back home to another state to be taken care of in the bosom of the family, as well as financially.  Her anxiety has meant she has lost job opportunities and her ability to work.  Her life from aged 19 to today and into the future has been reshaped by your vile criminality.  She experiences a sense of rage, which is naturally justified, and the ongoing trauma of this offending has coloured every aspect of her life and future hopes.

26M also provided a victim impact statement, which was read out by K's sister.  Her ambitions and plans leading up to your offending, like they had been for K, had been full of hope and excitement for her education and work and life in this city.  The night of this crime has changed everything.  Her anxiety and depression have deteriorated her mental state and ability to deal with feelings of self-blame and insecurity.  Rage and disgust often pervade her interactions with others, men in particular.  She is fearful and feels vulnerable. 
A psychologist and a counsellor and medication costs have been substantial, and the trial meant she could not take up several jobs offers.  Overall, she is physically and mentally exhausted and the ever-present and recurring reminders traumatise her again. 

27K's mother also provided a victim impact statement.  The rape of her daughter has devastated her and her family with significant periods of depression, anxiety, profound grief and rage.  These feelings are deeply felt and persistent.  Intrusive thought of personal failure as a parent are recurring.  Her relationship with K has also been affected.  She remarks on K's moodiness and anger, in stark contrast to the humorous, energetic and outgoing daughter whose company she treasures, as she still does.  She has witnessed K's night terrors, exhaustion and suicide attempt, as well as the loss of confidence and quickness to anger.  This mother's loss and grief is ongoing.  There has also been considerable financial burdens on the family, as well as the postponement of other personal objectives. 

28I take these statements into account.  They are expressions of the kind of trauma which victims and their families endure as a result of this type of offending. 

29There are a number of matters which I take into account in assessing the objective gravity of the circumstances of the offending.  K was subjected to four instances of rape, each of which represent separate and substantial criminality and discrete harm, which the sentence will acknowledge by a measure of cumulation for each of them.  This is to be slightly qualified by the single nature of the ongoing conduct contained within a limited timeframe. 

30The offence appears opportunistic, requiring or eliciting little planning or premeditation or sophistication upon a young, vulnerable victim who was very affected by alcohol and unable to exercise any proper control or judgment, protect herself in the situation, as you took advantage of it.  Your age disparity, the lack of the use of a condom, your insistence in the face of protest and refusal is contumacious criminal behaviour of a serious nature, carrying with it high moral culpability, in my view. 

31It is noted that there was no other gratuitous, physical violence, which fortunately you did not inflict, but rape is an inherently violent act which you inflicted upon your victim and even if the internal injuries outlined and the small areas of bruising also noted on her body by photographs, are often incidental to sexual intimacy, nevertheless, they resulted not from consensual circumstances, but rather in circumstances in which you sought to obtain your own gratification without any measure of consideration for the physical and personal integrity of K. 

32K was a young tourist.  It was submitted that while all rape cases involve a breach a trust, this case, 'Is not elevated' by reason of your being an occupier of rental accommodation.  However, your age and position as a host, indeed a super host, placed you, in my view, in a position of relative advantage and consequential trust, vis-à-vis K and M, a position which your relative good record and character provided a veneer of respectability, comfort and trust, which in an opportunistic fashion, you exploited for your gratification. 

33In this sense, there was a breach of trust here and your good character, in my view, was enabling of your offending, to some extent.  However, this should not be overstated.  It would be a much more significant reduction in weight had your behaviour been predatory and well-practiced. 

34Argument arose during the plea as to this concept, which was clarified to relate primarily to your persistence in the face of K's enfeebled objections, whereby you ignored her pleas and continued unperturbed and undeterred.  I do not view your conduct as predatory, in the sense in which premeditation and planned manipulation and preying upon the vulnerable inter alia is used in sexual offences. 

35During the plea, that term was disavowed, but the need for social and individual rehabilitation of the victim has a task for a just sentence, in as much as it can achieve such high objectives, was rightly emphasised by reference to DPP v DJK [2003] VSCA 109 at paragraph 17.

36Rape carries a maximum sentence of 25 year's imprisonment, but within its scope lies a wide range of circumstances.  Unfortunately, the court sees a wide range of them and offences invariably lie in a range of seriousness.  The constant factor is the objective seriousness and the community's abhorrence of this offence, which strikes at the freedom of individuals and right to personal integrity and physical safety.  The court must denounce such conduct and seek to deter those who would offend in this fashion by just punishment.

37I take into account your personal circumstances.  You were born in Christchurch in New Zealand.  Your parents live there currently.  You have a younger brother there also and a younger sister resides in Brisbane.  Over the past few years, you have travelled and resided between Melbourne and Christchurch on a number of occasions.  You completed your schooling in New Zealand, then worked in an electronic store, before purchasing a courier business, with which you worked for some six years until 2004. 

38You had left your family home at age 18 and moved in with a girlfriend, a relationship which ended in 2005.  You remained in your rental accommodation until 2007, when you returned to Christchurch to study a Bachelor of Architecture at a polytechnic institute over a three year period.  You returned to Australia in 2010, following the Christchurch earthquake, but you did go back to complete your studies the following year.  Having done so, you returned to Melbourne and worked in an architectural firm for six years.  Thereafter you transitioned to being fully self-employed, by 2016 working from home as an architect and architectural draftsman. 

39You lived in the apartment where the offences took place from the end of 2015 to 2017.  Thereafter you went to Footscray and Flinders Lane in Melbourne until October 2019.  Before your trial in December, you had returned to your parent's home for about six weeks.

40You have a brief criminal history in New Zealand.  In 1996 you were fined for exceeding breath alcohol limit and the following year you were fined for hindering police.  These are not relevant matters for current purposes and committed when you were aged about 20 years.  They are now relatively old.  However, they do hint at one of the issues that have beset you, that is, alcohol use. 

41There does not appear to have been any other significant relationship, although you told police that you were in one.  You later told them you had exaggerated that circumstance. 

42The plea was adjourned to obtain some reports and I will refer to them by reference to their dates chronologically.  A letter from Dr Wilding was tendered.  He is a general practitioner.  You presented to his rooms in 2013.  I note that that is what he has written in his report, although in view of other material, perhaps that is inaccurate and should read 2016 perhaps.  You presented with an alcohol-related issue, a substance use disorder, with an underlying anxiety and mood concerns. 

43In late-2017, probably contemporaneously as the offending, he diagnosed again such disorder, as well as an acute stress.  He noted that in 2018, that is post-offence, a psychologist, Dr Wise, had identified impulsive behaviour.  He noted the intervention of another psychologist, Mr Vetka, which in 2019, who at that time identified a possible personality disorder and that at the time of his last consultation in 2019, you were again stressed and anxious, which I understood likely to be situational and related to your current predicament. 

44Your first consultation in relation to mental health was in March 2016, with regular appointments from August 2017 until December 2019 on some 28 occasions.  Treatment and medication from 2016 to 19 are outlined in the report at paragraph 3.  These include alcohol reduction plans, a diazepam detox course and the prescription of naltrexone, melatonin, anti-depressants and other medications, including Seroquel for insomnia. 

45You remained compliant during those four years.  Dr Wilding, however, noted that alcohol dependence is a chronic relapsing condition and that you sought help within weeks of relapse.  A degree of reduced insight was noted and that your impulsive behaviour could be personality or alcohol related.  These two issues have affected your recovery. 

46Dr Wearing, a psychiatrist with the Inner West Area Mental Health Service, wrote a letter dated 5 February 2020.  You are a patient post-offence of that service.  The letter is based on Dr Wilding's letter and case notes.  In May 2019, again, post-offence, the emergency mental health team assessed you and diagnosed an adjustment reaction, following a reported suicide attempt.  You were prescribed anti-depressants and anti-anxiety alprazolam and quetiapine. 

47The next report was that of Mr Pietkiewicz, dated February 2020.  He is a psychologist with the VCPS Services.  Originally you were seen by Mr Wise and then Mr Pietkiewicz took over with seven sessions between February and June 2019.  The issues were alcohol and abuse of prescription medication, with underreporting of your use on your part.  Your use and emotional dysregulation increased during the course of treatment, with displays of impulsivity and
risk-taking behaviour and a suicide attempt is noted. 

48Despite the impact of your predicament post-offence and charges and in the face of cognitive behaviour therapy to deal with your issues, the writer notes that you seem to hold others responsible for the outcomes of your actions and your behaviour and coherence deteriorated to a point of being a risk to yourself, with little therapeutic progress made. 

49I take this post-offence effect into account in assessing your prospects during imprisonment and for the future of your rehabilitative prospects with likelihood that reclusion will be a difficult circumstance for you and the future somewhat guarded, especially if substance abuse persists, though the enforce abstinence of detention may prove a turning point on this front. 

50The main report was that of Gina Cidoni, a consultant psychologist, whose report is dated 13 February 2020 and it provided a supplementary report of March 2020.  You maintained your assertion as to the offences to her in your description of the circumstances.  Ms Cidoni noted documentation pertaining to two presentations in May 2018, again May 2019 at the Royal Melbourne Hospital emergency, due to suicidal ideation attempts and excessive alcohol consumption, with an adjustment reaction. 

51Documentation from NorthWestern Mental Health as to 23 May 2019, noted your loss of accommodation, financial hardship, stigma, loss of reputation and legal expenses as negative consequences.  But when your treating psychologist was contacted, he indicated consistent with his letter, that your underlying borderline traits are essentially exacerbated by your inability to accept responsibility, which led to escalating risk behaviour. 

52In February 2020, Ms Cidoni reports on no significant physical health problems.  You recited your history, including a number of suicide attempts.  You told her you had been placed in protective custody at Hopkins Correctional Centre
post-trial.  You reported to her that prior to the offences, you were drinking excessively and out of control. 

53Ms Cidoni conducted some psychological tests.  You show no psychopathy or personality disorder.  You exhibited appropriate distress responses of depressed mood and sadness in response to your situation.  The Sex Offender Risk Appraisal Guide scored you in the low range of risk category for sex offending.  Ms Cidoni emphasised depression and maladaptive coping were present before offending, with the adjustment disorder arising afterwards. 

54She offered an opinion as to the unprecedented offending, which was based on your heavy drinking in the offending period, which would have disturbed your judgment and disinhibited your conduct, having inferred underlying social difficulties.  She opined that you would experience prison as a greater burden than a person not burdened by your conditions and I take that report into account.

55Her supplementary report added two other assessments, the Static-99, which again revealed low risks cause and the SBR 20 sexual violence risk protocol with a similar ranking.  She noted your acceptance that offending is wrong, in principle, but that your denial persists. 

56In an interesting insight, Ms Cidoni noted that you were not intoxicated at the actual time of the offending, but you were in an 'ongoing struggle with alcohol abuse during the offending period'.  She wrote that alcohol abuse in your case that caused 'social impacts that interfered with normal social interactions and the formation of interpersonal relationships', fostering 'reliance upon guests for socialisation and in the victim's case, your sexual needs'. 

57This aspect, in my view, reinforces what I said before in relation to good previous character needing to be placed in the context of having to be assigned slightly lesser weight because it is an enabling factor, however, I do not consider that this is an aggravating factor. 

58Regarding imprisonment, the supplementary report says imprisonment can lead, in your case, to further situational stress and depression, increasing risk to yourself and for major deposition. 

59I am not persuaded that an adjustment disorder like the one observed in your case is properly described as 'abnormal or excessive'.  The prospect of a long prison term naturally would cause such a response.  I will take into account that your post-offence mental state makes you more susceptible and vulnerable in a prison environment.

60Apart from your good academic and work history, which I take into account and which is to your credit, a number of people have written references on your behalf.  I take all of these into account in assessing that your future risk of
re-offending is probably low and that your prospects in general terms, although good, may be guarded by your current state of denial and need to address alcohol use. 

61Kiara Soutter[2] and Caleb Kane[3], interior designer and architect of Melbourne wrote of your professional and conscientiousness in relation to your work ethic and the out of character nature of the offences. 

[2] A pseudonym

[3] A pseudonym

62Aaron Wales[4], a Christchurch Chartered Accountant, who has known your family for some 30 years, writes of his surprise at your situation and comments very positively on your family orientation and work qualifications. 

[4] A pseudonym

63Brayden Tyrrell[5], a long-standing friend who went to school with you and has kept in contact over 30 years speaks of a generous and caring side, hard work and pride in your work. 

[5] A pseudonym

64James Elliot[6], a retired lawyer from Christchurch who practiced as a solicitor of 47 years attests to your loving and supporting family and that the offending is in complete contrast to your character, history and reputation.

[6] A pseudonym

65Brayden McCoy[7], a senior architect, based in Christchurch writes of you as a skilled architectural technician and designer who grew up in a loving, stable and prosperous family, of your ambition for you work, your business acumen and social skills. 

[7] A pseudonym

66No doubt the offences and the consequences will impact upon your future.  At the same time, your network of supportive family and friends are a protective factor for your rehabilitation.  The aim of the court is just punishment which does not extinguish such reclamation. 

67Your parents wrote a letter to the court.  They outlined your background and your progress.  They emphasised your success as an architectural technician, your family orientation and your dedication to work, described you as fastidious and a perfectionist.  They wrote of your love of music, instruments and travel experiences, together with your wide circle of friends and sense of humour.  They are shocked at your predicament.  I take their letter and their ongoing support of you into account. 

68In the final view, it is clear that a period of reclusion is the only available disposition to the court.  This would be the case even if relevant provisions of the Sentencing Act were not in place.  As it is, rape is a Category 1 offence under s.3 of the Act.  Pursuant to s.5(2G):

'The court must make an order of imprisonment for such an offence.'

69As I will sentence you for a period of imprisonment for Charges 1 and 2, on the remaining charges, you will be sentenced as a serious sexual offender. 

70In sentencing a serious sexual offender the court must regard community protection as the principle purpose in determining the length of the imprisonment.

71I intend, as I indicated earlier, to cumulate appropriate periods that will not impose a disproportionate sentence. 

72Your status as a serious sexual offender will be entered into the court's records. 

73Although a degree of cumulation is appropriate, I am mindful of the principle of totality in respect of offences properly described as being encompassed in one incident.

74Just before I go onto the sentence, Ms Duckett, is there a period of registration that is applicable in Mr Parker’s case?  Perhaps if you can look into that matter.

75MS DUCKETT:  Yes.

76HIS HONOUR:  And advise me later on. 

77The sentence of the court is thus: 

78On Charge 1, you are convicted and sentenced to five years' imprisonment.

79In relation to Charges 2, 3 and 5, you are similarly sentenced to five years' imprisonment on each. 

80I order that the sentence on Charge 5 will be the base sentence. 

81I order that one year in relation to Charges 1, 2 and 3 be cumulative on
Charge 5, making a total effective sentence of eight years.

82I order a non-parole period of five years and three months.

83I declare that you have served 148 days, excluding today, by way of
pre-sentence detention and I will have that number noted in the records of the court. 

84I will sign the disposal order which was prepared as an ancillary order and I will advise as to possible periods of registration.

85MS DUCKETT:  Not applicable, Your Honour.

86HIS HONOUR:  Not applicable. 

87MS DUCKETT:  Applicable only to under 16 year old.

88HIS HONOUR:  Yes.  All right, thank you.  Well, I do not need to recite any matter in relation to that aspect. 

89Mr Desmond, is the sentence clear to you?

90MR DESMOND:  Yes, yes, thank you, Your Honour.

91HIS HONOUR:  Yes, thank you. 

92Well I will sign that ancillary order, which I think covers a couple of items for disposal. 

93MS DUCKETT:  Yes, Your Honour.

94HIS HONOUR:  And I need to make no other orders. 

95Just to confirm, because I only have you on the video, Mr Desmond, that
Mr Parker has heard that sentence.  Have you heard the sentence,
Mr Parker?

96OFFENDER:  Yep.

97HIS HONOUR:  Thank you.  All right.  Well, having recited that, I will leave it to my associate and others in the court to detach themselves from the connection.  Thank you, Mr Desmond for making yourself available.

98MR DESMOND:  As Your Honour pleases.

99HIS HONOUR:  Thank you, Ms Duckett. 

100MS DUCKETT:  If the court pleases. 

101HIS HONOUR:  Sine die. 

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