Director of Public Prosecutions v Perry

[2022] VCC 2289

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02092

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN PERRY

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	DPP v Perry
MEDIUM NEUTRAL CITATION:	[2022] VCC 2289

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Ms M. O'Brien &	Markotich Lawyers

HIS HONOUR: 

1Benjamin Perry, you have pleaded guilty to one count of attempted rape, two counts of common law assault, and one count of sexual assault. The circumstances of the offending were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference. 

2In brief outline, the complainant in the matter was a young woman who was aged 18 when she commenced a relationship with you in May 2019.  The two of you met due to the involvement of each of you in the Human Powered Vehicle sporting organisation which you had been actively involved in for some years.  The relationship continued until around May 2020.  It was her first sexual relationship and when it commenced she was in her final year at school.  You were nearly four years older than her and had been involved in other relationships.  You were living on your own in Drouin and the complainant would travel to see you.  In the course of the relationship, you would also meet at HPV functions.

3When the relationship commenced, you were flirtatious and affectionate but as the relationship progressed you became increasingly violent and verbally and physically abusive.  The offending arises out of events on two occasions in November 2019 and January 2020. 

4By November 2019 you and the complainant were in a sexual relationship.

5On Saturday 30 November 2019, the complainant was at your house in Drouin and you and the complainant had been arguing because you wanted to have anal intercourse with her and she refused.  On her account, she had made this clear previously.  You then became violent, forcibly removed her clothing, roughly pulling off her shirt and pulling down her pants. You then tried to insert your penis into her vagina.  She tried to move away but you grabbed her shoulder and used your fingernails to claw her skin, causing her pain and preventing her from moving.  You continued to try to insert your penis into her vagina, however, she kept fighting and moving her hips away before finally being able to fight you off.  These events constitute Charge 1, attempted rape.

6The complainant got away from you and put some clothes back on.  When she went to leave, however, you went to the kitchen and grabbed a knife, held it up and pointed her chest.  You then threatened to slit your own throat if she left you.  She did not want you to hurt yourself, so she went back into the bedroom and sat on the end of the bed for about 10 minutes.  You then entered the room and walked up to her and using your right fist punched her to the face, to the eye with a closed fist.  The punch was with such force that she felt immediate pain and fell back on the bed.  You then climbed on top of her and used your hands to grab her shoulders and pushed her hard into the bed and pushed her by her shoulders into the wall, causing her to bite her lip causing it to bleed.  She then fell to the floor and you left her groaning in pain.  You returned later and offered to take her to the local hospital.  The events in the bedroom constitute the charge of common assault.

7The complainant took photos of her black eye and scratch to her shoulder.

8On the drive to the Warragul hospital, you stopped in the emergency lane and told her that you had 'fucked up' and threatened to drive into a tree.  The complainant was worried that you would carry out the threat while she was in the car and persuaded you to go back to your house.

9On Tuesday 28 January 2020, you tried to have sex with the complainant in the car.  You touched her in a sexual way on the breasts and vagina and on the outside of her clothing.  She told you 'no' on two occasions.  This constitutes Charge 3, sexual assault .

10The two of you then went back to your house.  You again tried to have sex with her.  You touched her on the breast and the vagina over her clothing.  She fought you off, pushing you sway and trying to get away.  You grabbed her by the arms and overpowered her.  When she was trying to get away, you grabbed your arm and bit her on the arm.  She took photographs of the bruising and bite marks on her arm.  These events constitute Charge 4, common law assault.

11The relationship ended in about May 2020.  The complainant confided as to these events to her then boyfriend who encouraged her to report the matter to the police.

12You were interviewed by the police on 10 February 2021.  You admitted being in a relationship and said it was good in parts but it was also just negative and that it was also horrible between the two of you.  You said that you were aggressive with her but you did not think you got physical with her and tried to turn your anger away.  You said you once threw her off the bed but that was the only time you hurt her.  You denied punching her in the event on 30 November.  You admitted that when you were younger you would get really angry but you have since learned to calm down.  You advised that you go blank for minutes when this occurs and you do not recall anything. 

13After your arrest in February 2021, you were remanded in custody until released on bail after a preliminary hearing on 20 October 2021.

Victim Impact Statement

14The complainant has provided a victim impact statement indicating that your offending has had a significant and continuing impact on her.  Looking at her face often reminds her of the black eye and split lip you inflicted on her.  She stopped playing football because she did not want to be touched in the wrong way.  She stopped being involved in the HPV movement as she was worried about seeing you.  She was forced to pretend she was happy when she was not.  She finds it hard to trust people and has an increase in irritability and has become more anxious.  She tried to establish a new version of herself including a new job and continues to have flashbacks.  She is worried about the safety of her home and her partner has had cameras installed.  She had to take days off work for mental health reasons and for court appearances.  She believes she will not ever recover from the trauma.  She has doubts as to her actions and choices she makes, notwithstanding the reassurances she has been given.

15It is clear from the victim impact statement that your offending has had a significant and continuing impact on the complainant and this is a factor which must be taken into account on sentence. 

Offence Seriousness and Moral Culpability

16The offence of rape can be committed in a wide variety of circumstances.  The mental element involves an act of sexual penetration without the consent of the complainant in circumstances where the perpetrator has an awareness of the lack of consent.  The offence of attempted rape requires that your conduct be unequivocally referable to an intention to complete the offence.  

17Here, your conduct was clearly unequivocally referable to your intention to engage in an act of sexual penetration of the complainant in circumstances where you could not have reasonably believed that she was consenting to that act.  She had made it clear verbally that she did not wish to have any form of intercourse with you that day.  You had stripped off her clothing and she was physically resisting your attempts to engage in intercourse with her.  You scratched her shoulder with your fingernails in the course of the struggle.  She was able to fight you off.  You were older than her and in circumstances where you had been in a consensual relationship with her for some months, you knew full well that she was not interested on that day.  

18Your later conduct in threatening self-harm and then punching the complainant to the face can be referred back to reflect your intention and awareness of the non‑consent and your anger at her exercise of her right to decline consent to intercourse.

19Women in relationships are entitled to refuse consent.  They do not have to fight off their partners.  They should not be assaulted when they refuse consent.  You are old enough to know that that was the position.

20The events in late January mirror the earlier event although the two charges are of a lesser seriousness. 

21The impact of your offending on the complainant is relevant to an overall assessment of your moral culpability for both Charge 1 and the balance of the charges which in the context of a domestic relationship, although you were not living together, I regard as high.

Matters in Mitigation

22I turn to matters in mitigation.  Your counsel put a comprehensive submission which I take into account in your favour. 

23The central thrust of the submission was that the sentence of the court should not involve your return to custody.  I have been unable to accede to that submission. 

24You are now aged 25 and a half.  You were brought up in the Drouin area.  You have a sister two years older than you.  Your father worked as a storeman but unfortunately passed away just before you turned eight.  Your mother was forced into the workforce and your maternal grandmother played an important role in your upbringing.  Further, your uncle, a now retired senior public servant also was involved in acting as a father figure in your upbringing. 

25You were schooled in the local area.  Following the Black Saturday bushfires in 2009 when a memorial that you had built over your father's grave was destroyed, you started to act up and attended some counselling at the instigation of your mother and uncle at that point.

26During your high school, you became heavily involved in the HPV movement and were successful in that field.  You completed your VCE and were to attend Deakin University, however, the course you had set your sights on was not offered that year.

27Around that time, your mother and sister left the family home as your mother had to care for her own mother.  You were left alone in the family home.

28As you had been growing up, you have had an exemplary work ethic working in the local cycle shop, pizza shop and also working as a labourer carting plaster.  Since February 2019, you have been employed in a bike shop in Pakenham.  You have also been involved in assembling specialist trikes as well as in setting up and coordinating sporting events in the HPV field.

29Your counsel also tended a number of personal references from family and other members.  A number of the people who gave references were present in court including your mother and your uncle and their presence in court on the plea was testament to their continuing support for you.  

30The references are very impressive.  In particular, you have been an active participant in the HPV movement including in significant fundraising activities around the country and overseas.  For a young man of your age, the contents of the references are very impressive.  They testify to your work ethic.  They also testified to your growing maturity and to the opinion of the referees that this offending was regarded by them as very much out of character.  Significantly, your current employer was gave a very glowing reference and was prepared to engage you after release from custody and will continue to support you.

31I am prepared to accept their submission but it is important to note that most sexual offending occurs in private and so people are not aware of sexual offending when they give testimony about people that they know who are brought before courts for sexual offending. 

Other Matters in Mitigation

32Aside from your personal circumstances, your good employment record and your lack of prior convictions, your counsel emphasised a number of other matters in mitigation.  First, you pleaded guilty to the charges.  You are to be accorded a perceptible amelioration of sentence in pleading guilty in the face of the significant court backlog in the COVID environment.  I take that into account in your favour. 

33It was not disputed that you had offered to plead guilty to the charges involving assault sometime after you were committed for trial but this was not accepted by the prosecution. 

34The plea to the charges involving attempted rape and sexual assault was offered and accepted shortly before the matter was to come to trial.  It was a late plea.  However, you were facing other charges involving the complainant which did not proceed.  You get credit for the plea albeit that it is late.  You have facilitated the course of justice.  It has significant utilitarian value as the complainant was not required to give evidence although shew as the subject of a pre-trial hearing.  The plea itself is some evidence of remorse.

35Some of the people who gave references have indicated that you are remorseful for your conduct.  I give you credit for some remorse although there does not appear to be very much evidence of victim empathy.   

36The thrust of your counsel's submissions was that you are to be treated as a youthful offender notwithstanding that you are now aged 25 and a half.  I accept that you are to be treated as a youngish offender.  The impact of youth as a sentencing factor diminishes with the seriousness of the index offending however.  For a first offender, with no prior convictions, the authorities direct the court to give significant weight to rehabilitation in any sentencing disposition and I do that. 

37A further factor in your favour is the issue of delay.  You have had these matters hanging over your head for over two and a half years since your arrest and through no fault of your own in the delays caused by the pandemic.  You have not reoffended in that period.  Further, you have been the subject of an intervention order in favour of the complainant in that period and this has not been breached.  These matters bode well for your rehabilitation which is a significant consideration in cases like this.

38A further matter is that you have faced two trials involving other complainants where you were found not guilty which would have been a very stressful experience for you.

39Your counsel also relied on the burden of imprisonment.  You served eight and a half months in custody before being granted bail.  This was at the height of the pandemic where programs were severely curtailed and the system was subject to significant lockdowns.  I regard that period as being significantly more onerous than a term of imprisonment of the same duration in normal times and I have had regard to it, including periods that you were in protection. 

40Notwithstanding the restrictions of lockdowns which also included inability to have face-to-face visits or programs, you used your period in custody productively and I give you credit for that. 

41A further burden of the period of remand was that your maternal grandmother, with whom you were very close, passed away while in custody you were unable to support her or the family or attend the funeral in those trying times. 

42These are all matters that I take into account in your favour. 

Current Sentencing Practices

43In sentencing you, I am required to have regard to current sentencing practices, along with the maximum penalty, the circumstances of the offences, moral culpability and the prospects of rehabilitation.

44Your counsel refer the court to the cases of DPP v Luwan [2022] VCC 174, DPP v Netherwood [2020] VCC 415 and DPP v Tilley [2018] VCC 1700 where judges of this court had imposed combination sentences or community corrections orders for the charge of attempted rape.

45I have considered those three cases and regard them as distinguishable as I regard the index offending here as more serious.

46The learned prosecutor referred the court to a number of cases, DPP v Ton [2022] VCC 1700, DPP v Park [2019] VCC 372, DPP v Wai [2019] VCC 513, and DPP v Olarte [2017] VCC 1654, involving attempted rape, albeit that these did not involve offending within an existing relationship. Those cases resulted in a head sentence and a non-parole period.

47Your counsel referred to the case of Boulton v The Queen [2014] VSCA 342 where the Court of Appeal had indicated that in certain serious cases a CCO could be an appropriate sentencing disposition. Those comments in Boulton have been somewhat overtaken by time given the imposition of standard sentencing in a number of cases including rape.

Purposes of Sentencing

48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim.  I am also required to balance the interests of the community in denouncing criminal conduct and the interests of the community in ensuring that, as far as possible, offenders are reintegrated and rehabilitated into society.

49In sentencing submissions, the learned prosecutor emphasised the seriousness of the offence of attempted rape, carrying as it does a 20-year maximum penalty, and he put that this was a mid-range example of the offence.  He referred to the psychological manipulation by you of the complainant after the event as well as your physical conduct in seeking to engage in intercourse over the protestations of the complainant.

50He referred to the cowardly nature of the punch to the face of the complainant after her resistance.  He submitted that this called for cumulation of the sentences involved in the first event.

51He also referred to the need to denounce violence within domestic relationships and to authorities that indicated the need for general deterrence in sentencing where there is violence against women.

52He called for the imposition of a head sentence and a non-parole period.

53In her final submission, your counsel did not dispute the seriousness of the offending in November 2020 but maintained that all the sentencing purposes could be achieved by a combination sentence.  She intimated that leaving aside the charge of attempted rape, in other circumstances, the other charges might have been dealt with summarily.

54She referred to the case of Boulton as I have indicated where the Court of Appeal indicated that a CCO could be used in more serious offences in certain circumstances.

55She also emphasised the need to consider issues of totality and to take into account the period that you had served on remand.

Consideration

56I have anxiously weighed the sentencing disposition in this matter.  You do have the benefit of being a relatively youthful offender being dealt with for the first time in a higher court and with no prior convictions.  It is a weighty matter to return an offender to custody after they have been on bail for a period of over 12 months.  Further, your good employment record and prospects of rehabilitation, which I regard as good are such that a return to custody would impede your continuing progress to rehabilitation.

57It was on that basis that I arranged for you to be assessed for a community corrections order and you have been favourably assessed.

58Weighing against your counsel's submissions are the seriousness of the offending on 30 November 2020, you were determined to engage in intercourse with the complainant.  She successfully resisted your attempts.  In a violent act subsequently, you punched her to the face.  Notwithstanding your relative youth, at that stage you had been in a relationship with her for over six months and she had made her position perfectly clear on that occasion and this makes your conduct on that day utterly unacceptable.  

59As I have indicated, women are entitled to their bodily integrity and to choose when to engage in sexual events.  Men must respect that and your conduct on this occasion must be utterly denounced.  The sentence of the court must send a signal to all men, youthful or not, that sexual exchanges must be consensual.  When women choose to say no, that must be respected and they are not to be retaliated against by way of acts of violence.  

60In relation to both these events, you were violent against this young woman and your conduct was demeaning.  Your conduct has had a significant and continuing impact on her which must be considered in the sentencing synthesis.

Sentence

61Having weighed all the competing considerations and the submissions on your behalf, the sentence of the court is as follows.  Could you please stand. On the charge of attempted rape, you are sentenced to three years' imprisonment.

62On Charge 2 – common assault, 12 months' imprisonment.

63On Charge 3 – sexual assault, nine months' imprisonment.

64On Charge 4 – common assault, six months' imprisonment.

65The base sentence is the sentence on Charge 1.  I direct that six months of the sentence on Charge 2, and three months of the sentence on Charge 3 be served cumulatively on the base sentence and on each other, making a total effective sentence of three years and nine months.

66I direct that you serve two years' imprisonment before being eligible for parole.

67I declare that you have served 253 days' presentence detention and order that it be deducted administratively.  I declare that had you not pleaded guilty, I would have imposed a total effective sentence of five years, with a non-parole period of three years.

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