Director of Public Prosecutions v Pearson (a pseudonym)

[2023] VCC 1683

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

SEXUAL OFFENCES LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON PEARSON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	21 August 2023
DATE OF SENTENCE:	14 September 2023
CASE MAY BE CITED AS:	DPP v Pearson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023 VCC 1683

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Plea of guilty – Rape – No criminal history – Victim is ex-partner – Offending occurred in victim’s home - Breach of trust - Victim in vulnerable state and under the influence of prescription medication – Offending recorded on video by accused – Pre-text conversation

Legislation Cited: s.5A(1)(b) and s.5A(3) Sentencing Act 1991

Cases Cited:Jurj v R [2016] VSCA 57; DPP v Latina [2015] VSCA 102; R v Doran [2005] VSCA 271

Sentence: Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 22 months’ imprisonment – Pre-sentence detention of 24 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F. Holmes	Solicitor for the Office of Public Prosecutions
For the Offender	Ms P. Marcou	Garde Wilson Lawyers

HER HONOUR:

1Simon Pearson[1], you have pleaded guilty to one charge of rape, which is a rolled-up charge.  The offence of rape carries a maximum penalty of 25 years' imprisonment.  In sentencing you, I must factor in the maximum penalty, as this reflects the seriousness with which Parliament regards the offence.  Also, I must have regard to the standard sentence for this offence which is 10 years' imprisonment.

[1] A pseudonym.

2You were 23 years old at the time of the offending and the complainant, Madeline Neal[2], was 22. 

[2] A pseudonym.

3You were in an intimate relationship for about two years.  Over that time, the complainant suffered from anxiety and took medication, Olanzapine, every night to help with sleeping, which caused her to sleep heavily.

4You had met in 2019 and became friends, then this developed into a relationship.  In about December 2019, the two of you moved to an address in Melbourne where you lived together.  Within the first year of your relationship, you confided in the complainant that you had previously had problems with addiction to viewing pornography, however this was no longer an issue.

5On 24 September 2020, you and the complainant moved to a one-bedroom apartment in another suburb in Melbourne.

6While living there, the complainant observed pornographic material on your laptop or your shared computer.  You admitted to her that you still had issues with pornographic addiction, and you were often viewing such material.

7On one occasion, the complainant found a file on the computer under your profile which was called 'rape'.  She confronted you about this, and you told her it was not actual, but staged content.

8In May 2021, the two of you broke up and you both moved out of the one-bedroom apartment.  However, you stayed in contact for the following month, attempting to mend your relationship.

9In late May or early June 2021, you contacted the complainant and asked her to urgently meet with you.  You met up on numerous occasions and during one of these occasions, you told her that you had filmed yourself having sex with her while she was asleep.  You told her you had filmed this on your mobile phone while you were living together in the one-bedroom apartment.

10During the conversation, the complainant became aware that a recording of you having sex with her while she was asleep was in police possession due to other matters that police were investigating at that time.

11The matters to which I have just referred are the context in which the offending occurred.

12In the early hours of 2 November 2020, the complainant was lying on the bed she shared with you.  She was not wearing any clothing as she usually slept naked.

13At about 12.55 am, you inserted your penis into her vagina while she was asleep and recorded this on your mobile phone.  Just after 1.00 am that same morning, in the loungeroom of your one-bedroom apartment, you began a video recording on your mobile phone.  You can be heard saying, 'I'm going to go in and fuck this fucking sleeping bitch's body', as you walked into the bedroom where the complainant was asleep.

14You climbed on top of the complainant and inserted your penis into her vagina while she was asleep.  I was told that snoring can be heard on the recording.  You ejaculated and withdrew your penis from her vagina.  The two episodes of sexual penetration give rise to Charge 1, that is the charge of rape, which is a rolled-up charge.

15You were arrested on Friday 26 November 2021.  You were taken to the Box Hill police station but made 'no comment' answers to all allegations and questions asked of you, which is your right.

16Mr Pearson, your offending is serious and deserving of punishment, which is just in all of the relevant circumstances.  Your conduct must be appropriately denounced.  You took advantage of the fact that the complainant was in a vulnerable state, knowing that she was under the influence of prescription medication and not in a position to consent to being sexually penetrated.  Accordingly, your treatment of her involved a significant breach of trust.  Further, you made a recording of the offending, retaining this for your own sexual gratification.  You offended against the complainant when she was in the sanctity of her own home and was entitled to feel safe, especially from you, who was her partner at that time.  Your actions were deplorable.

17The complainant provided a victim impact statement which was read aloud by
Ms Holmes, the learned prosecutor.

18The complainant said that your offending had impacted her whole life and it continued to do so.  She said that she thought she knew you for three years but was wrong.  She said that her work had been greatly impacted and that she had to take a month off work to be hospitalised at a mental health clinic for an eating disorder.  She developed this because of her inability to swallow food and would gag at any attempt.  She took two weeks off work to attend committal court proceedings, which further impacted the damage to her psychological health.  She took three days off for three separate suicide attempts.

19She said she developed disassociation, which is a mental illness triggered by trauma, leaving her unable to work.  She said nothing felt real and she would black out for periods of time and suffered memory loss.  She said that this began in July 2022.  She said that, fortunately, she is now able to walk, communicate and work, but she still suffered from disassociation and feeling as if she was watching her own life from above.

20She said that the disassociation and trauma from the event and court process saw her breakdown at work and cut herself in the work bathroom, resulting in her being let go from her job, where she had been employed for three years.  She suffered night terrors and woke up in cold sweats.  She said she dreams of what you did to her.  The complainant said her friendships had suffered and she lost many close friends, as they could not deal with what happened to her and how it had affected her.  She was unable to relate to them and they were unable to support her.  She said that she has to go to therapy once a week, at least, and see a psychiatrist, psychologist and mental health nurse.  She also attends group sessions.  She said that her current relationship was impacted constantly by the trauma that she has suffered, as trust was a huge issue.  She said she felt that the impact would remain for the rest of her life – financially, mentally and physically.  She said there were no words to put into writing how much your offending had impacted her life.

21Mr Pearson, these are the very real effects that your offending has had upon the complainant, and I take them into account in sentencing you.

22You have no prior convictions; however, you have been charged with offences concerning possession of child pornography, which allegedly came to light at the time the police seized your phone.  However, I have not factored these in when sentencing you for the present offences, and I do not understand you to have declared a final course in relation to those charges, but in any event, I sentence you in the context of that having occurred, but take it no further.

23I take into account your background.

24You are one of three children and have come from a stable and supportive family, where your parents were both engaged in professional occupations.  After completing Year 12 at a private secondary school, you commenced mechanical engineering for a short time, before transferring to a Bachelor of Business, followed by a Bachelor of Commerce.  However, you did not complete the courses and throughout your studies you worked in hospitality on a casual basis.  Due to COVID lockdowns, you moved from the hospitality industry to work in a retail business until your employment was terminated in November 2021 because of your employer learning of the charge you were facing.  I was told that, as at the date of the plea hearing before me, you worked as a food delivery driver. I have factored in that the loss of your job has been a form of punishment you have already undergone. 

25In assessing the gravity of the offending, I take into account that it was apparently of short duration, although there were two separate episodes and your offending endured long enough for you to ejaculate.  As to the submission that the offending was spontaneous, unplanned and lacking in premeditation, I am prepared to accept that this was the case for the most part, however it was not so spontaneous and unplanned that you did not think to film your offending.  In factoring in that the charge is rolled-up, I have also taken into account that the two incidents occurred within a short time of one another on the same occasion of offending.  In relation to the submission that there were no aggravating circumstances associated with the offence, the filming of the offending and breach of trust, exploiting the fact that the complainant was in a vulnerable position, are aggravating features of your offending, and I have previously referred to those.

26It was also submitted that the offending was at the lower end of seriousness for offences of this kind.  The prosecution submitted that these were serious instances.  Of course, any offence of rape is serious and, as the Court of Appeal has observed, a whole variety of circumstances can pertain in relation to offending of this kind.  In all of the relevant circumstances, and in view of the factors set out at paragraph 80 of Jurj v R [2016] VSCA 57, noting that it is not an exhaustive list, few of the factors set out in the list apply to your case. In that list, one of the relevant matters is whether the offender used a condom. Ms Holmes fairly conceded that she did not press this as an aggravating factor or a relevant matter, in the context of you having a consensual relationship with the complainant and it was not known what your practices were in relation to wearing a condom. However, I have taken into account the absence of aggravating factors in your offending in assessing the gravity of it. In my view, although serious, it is less than midrange.

27It was submitted on your behalf that you ought be given a Doran discount in view of the fact that it was you who alerted the complainant to your offending, in circumstances where police were in possession of your phone, which had the relevant footage on it.  DPP v Latina was also relied on by Ms Marcou.  That was a case where, although there was evidence of the appellant's offending, the accused's confession in respect of the magnitude of it was a matter that entitled him to a substantial discount in sentencing, as this was an aspect that would have been otherwise unknown to police.

28I have little doubt that when you spoke to the complainant about your offending, you were concerned that police would find such footage when examining your phone, and that effectively you were going into a form of damage control.  While it is true that the offending was undetected at the time you told the complainant about it, it is far from clear that your offending would have been undetected by police in the context of examining your electronic devices for child pornography, I would think that finding the video of you raping the complainant was just about inevitable in all of the circumstances.

29However, I have factored in that the complainant had trouble in police taking action on her behalf, which is most surprising and concerning I must say, and it was only when a particular police officer was recommended to her that this occurred.  In the end, I have made some allowance in your favour for alerting the complainant as to your offending, but this needs to be seen in the context of you subsequently running a contested committal hearing where consent was in issue.

30While it was your right to run a committal hearing, I understand that the complainant's credibility and reliability were extensively challenged and, effectively, she was put through the mill.  Therefore, while you did alert her to the existence of the video footage, and the footage is an essential part of the prosecution case against you, this was in circumstances where, although unclear as to whether the police would have found this on your phone, I have formed the view that this was very likely – certainly, they had the ability to do so and the footage was broadly of the nature of what they were looking for ꟷ and it is also in circumstances where, notwithstanding the footage, you did not plead guilty to the offending until after the most part of the committal hearing had taken place, where the complainant was extensively cross-examined as to whether she consented and in respect of her actions relevant to your state of mind.

31I must say that, in view of what you are recorded as doing, and accepting that the complainant can apparently be heard snoring in the footage, as well as what you said in the pretext conversation, and what you said in the video recording, it is surprising that a contested committal hearing occurred.  Having said this, I understand that there was another allegation against you which was not pursued and other details which did not form part of the prosecution opening because of matters raised at the committal hearing.

32I have also factored in that, before the committal hearing concluded, you entered a plea of guilty to the charge now before me.  Therefore, whilst I have found that the police would probably have come to know about the fact of and the extent of your offending, and that your challenges of the complainant's credibility and reliability as to what the video revealed at the committal hearing was not consistent with a confession from you, in all of the circumstances, I allow for something of a discount pursuant to Dorans’ case, however this is of limited scope, in view of the matters to which I have just referred. 

33In sentencing you, I allow for a fairly substantial discount in the sentence you would otherwise receive because of the stage at which you entered your plea of guilty.  Although the complainant and other witnesses were not spared the time and trouble of giving evidence at the committal hearing, and the community was not spared a substantial degree of time and expense of these proceedings, the hearing did not complete before you entered a plea of guilty.

34Therefore, you have saved the witnesses, especially the complainant, the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.  Further, you are entitled to a palpable allowance in your favour in view of the fact that you pleaded guilty during the pandemic, thereby contributing to a reduction of backlog in the number of trials in this court. 

35In your case, remorse is somewhat complicated.  On the one hand, the way in which the complainant was cross-examined at the committal hearing reflects an absence of remorse but, on the other hand, you have expressed remorse at a fairly early stage in the pretext conversation, where you said, 'What I did was horrible and terrible and I had to tell you and it's not acceptable and you have every right to be upset'. Further, you have expressed remorse to a number of the character referees, as well as to Mr Jeffrey Cummins, forensic psychologist, and to your treating psychologist, Ms Tracey Allen. 

36In sentencing you, I take into account the report of Mr Cummins, dated 11 August 2023, including that you were the victim of sexual abuse as a child at the hands of a neighbour to your grandfather in Sydney and were approached at a Melbourne suburban swimming pool change rooms by an older male, which caused further trauma to you.

37I accept that you have been diagnosed as suffering from major depressive disorder of at least moderate severity, and recurrent in type, with associated features of anxiety.  Mr Cummins was of the view that you have been suffering from major depressive disorder from your late teens/early twenties, when you realised you were struggling with tertiary studies.

38You are now medicated with antidepressants, with your current symptoms being largely reactive to your current legal situation and the prospect of a gaol sentence.  I accept that any time in gaol will be harder for you than for someone without these mental health difficulties and, further, I have factored in that this is your first time in gaol and that you are still a relatively young man.

39As you are still a young man, I must do what I can to maximise your prospects of rehabilitation.

40In sentencing you, I have also taken into account that you have been engaged in treatment with Ms Allen since June 2022, having attended 15 sessions as at
14 August this year, which is the date of her report.  She was of the view that you would benefit from ongoing psychological support and further offence-specific work.  You are motivated and capable of engaging in such treatment.

41You have good family support and a solid work ethic which will stand you in good stead in the future. I have also taken into account the bundle of character references where those who know you speak very highly of you. It appears to me that you are a person of otherwise good character and that your offending is somewhat aberrational, although I am aware of the other charges you are facing. However, the offending before me and the other pending matters, noting that they are yet to be proven or dealt with, appear to have occurred or allegedly occurred during the same period in your life, at a time when you appear to have been having some personal struggles.

42I must say that I am concerned as to the nature of the pending matters that you are facing, however, other than the remarks that I have just made, or made in the course of my sentencing remarks, I will put these to one side as I am unaware as to the details or the course that you are going to adopt in respect of these other matters.

43I have also factored in that there has been fairly significant delay in this matter for various reasons, during which you had the hefty anxiety of this matter hanging over your head, although you did have the ability to reduce this somewhat by entering a plea of guilty at an earlier stage. Nevertheless, you have had a good deal of anxiety because of the delay and you have taken some substantial steps towards rehabilitation during this period.

44In view of your lack of criminal history, your remorse and insight, strong work ethic and strong family and community support, and the positive steps you have taken already in respect of rehabilitation, I assess your prospects of rehabilitation as very good and I place fairly minimal weight on specific deterrence and protection of the community.

45I place strong weight on general deterrence in a bid to deter others from offending as you have.

46You are to be sentenced to a term of imprisonment which does not involve a community corrections order in combination with it.

47You fall to be sentenced for an offence which entails the standard sentence regime. 

48The standard sentence is but one matter to take into account and is to be treated as a legislative guidepost, having the same function as the maximum penalty.  It does not affect the established instinctive synthesis approach to sentencing and does not require or permit two-stage sentencing.  It does not otherwise affect the matters which the court may, or must, take into account in sentencing.

49Section 5A(1)(b) of the Sentencing Act 1991 provides that the period specified as the standard sentence for an offence is the sentence for an offence that is in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.

50Section 5A(3) provides that the objective factors affecting the relative seriousness of the offence are to be determined:

'(a)without reference to matters personal to a particular offender or class of offenders; and

(b)   wholly by reference to the nature of the offending.'

51The 'relevant term' for a non-parole period for a total effective sentence, incorporating at least one or more standard sentencing offences, is the total effective sentence.  The court must, unless it considers it is in the interests of justice not to do so, fix a non-parole period which is at least 60 per cent of the relevant term, if the term is less than 20 years.

52I am required to explain how the sentence imposed by me relates to the standard sentence.

53In sentencing you I have also had regard to current sentencing practice, but only insofar as this pertains to sentences imposed after the standard sentencing regime came into effect. Current sentencing practice is but one consideration in sentencing you and it is not a controlling one.

54As a young man with no prior convictions or findings of guilt, and with all the harshness involved in a gaol sentence in your situation, and in view of the objective gravity of your offending and relevant circumstances, I am of the view that a fairly moderate head sentence with a substantial gap between the head sentence and non-parole period is warranted, so that you become eligible for parole sooner rather than later. It is to be hoped that the pending matters can be finalised sooner rather than later, if they are to be the subject of plea proceedings, so you do not lose the chance of some concurrency with your current sentence.

55You are convicted of the offence.

56You are sentenced to four years' imprisonment with a non-parole period of
22 months before becoming eligible for parole. I consider that it is in the interests of justice to set this non-parole period rather than the prescribed one of 60 percent in all the circumstances of your case, and especially considering your prospects of rehabilitation which will not be enhanced, the longer that you are in gaol, in my view.

57Further, the sentence I have imposed relates to the standard sentence by being six years less than it, and I have sentenced you to this term for the reasons that I have just set out in these, my sentencing remarks, including my assessment of the objective gravity of your offending.

6AAA

58If not for your plea of guilty I would have sentenced, you to six and a half years imprisonment with a non-parole period of four years.

59I declare that you have already served 24 days by way of pre-sentence detention.  Is there anything arising, Ms Holmes?

60MS HOLMES:  No, Your Honour.

61HER HONOUR:  Ms Marcou?

62MS MARCOU:  No, Your Honour.

63HER HONOUR:  Very well.  I will allow you, Ms Marcou, to have a word with your client before we end the transmission, but I will now adjourn.

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