Director of Public Prosecutions v Prescott (a Pseudonym)

[2024] VCC 2454

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN PRESCOTT (A Pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF SENTENCE:	20 December 2023
CASE MAY BE CITED AS:	DPP v Prescott (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 2454

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:  Charges of rape, intentionally damage property, persistent contravention of a family violence intervention order and a summary charge of committing an indictable offence whilst on bail – no relevant criminal history – plea of guilty on first day of trial – standard sentencing scheme – Bugmy – Verdins – youthful offender – evidence of remorse – good prospects of rehabilitation – no shorter than normal non-parole period

Legislation Cited:     Sentencing Act 1991 s 16(3C), s 5(1), s 5(2), s 5A(1)(b), s 5A(3), s 5B(2)(a)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen [2011] VSCA 372; R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325; Clarke (a pseudonym) v The Queen [2022] VSCA 89; Brown v The Queen (2019) 59 VR 462

Sentence:Total effective sentence of four years’ and 5 months’ imprisonment. Non-parole period of 2 years’ and 9 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr J. Harkess (Plea) Mr A. Lew (Sentence)	Office of Public Prosecutions
For the Accused	Mr J. Portelli	Victoria Legal Aid

HIS HONOUR: 

Introduction

1Glen Prescott[1], I will sentence you to a total effective sentence of four years and five months’ imprisonment and will set a non-parole period of two years and nine months’ imprisonment. Excluding today, you have been in custody over these charges for 284 days. I will declare that period as time served under my sentences today.

[1]A Pseudonym.

2You pleaded guilty to a charge of rape, a charge of criminal damage, a charge of persistent contravention of a family violence intervention order and the summary charge of committing an indictable offence while on bail, being rape.

3The circumstances of your offending are set out in the document, 'Summary of prosecution opening for plea', which is Exhibit A.

Circumstances

4On 19 February 2021, you and Ms Cook[2] returned home from a day at the beach. You resided together and once you returned home, you asked Ms Cook to purchase you beer. She did so, on two occasions that evening. You consumed about 12 beers and then went to your neighbour's house. Ms Cook went to bed.

[2]A Pseudonym.

5You returned home at approximately 11.30 pm and woke Ms Cook up. You were saying such things to her as 'I know you are not real', 'You're reptilian', and 'I have Jesus in me and he’s telling me to punish you.' At this point Ms Cook became afraid and started to cry. She started collecting her belongings and went into the spare room.

6You called her via Facebook Messenger and asked her to come back to the bedroom to perform oral sex on you. You told her if she did so, you would leave her alone to sleep. Ms Cook agreed and performed oral sex on you. She did so for about 20 minutes and noticed your iPad was set up on the chest of drawers as if it was recording.  You were unable to ejaculate and then requested vaginal sex with Ms Cook. She initially said no but then agreed if it meant you left her alone to sleep.

7You had vaginal intercourse with Ms Cook for about 20 minutes and then became tired and frustrated. You attempted to penetrate her anus twice to which Ms Cook told you no. On these occasions you told her it was an accident and she replied, 'One last chance, don’t do it again.'

8Ms Cook was lying face down with her head and shoulders on the bed. Her arms were pinned underneath her chest and your weight was on top of her. You again attempted to penetrate her anus and Ms Cook said, 'If you do this, you're raping me.'

9You then inserted your penis into her anus without her consent. Ms Cook was unable to move. She was in pain and began crying loudly. You continued having non‑consensual anal sex with her for about 40 minutes. You said things to Ms Cook such as 'Tell me if you want me to cum in your arse', 'Tell me you’re my good little girl', and 'You know I’m raping you right now?'.  Ms Cook complied with your requests. You then covered her mouth with your hand and inserted your fingers in her mouth towards the back of her throat. You said to her, 'Don’t you dare say a word,' and 'Go on, say a word, I dare you.'

10You then started penetrating her vagina. Ms Cook did not object to the vaginal intercourse. You pushed Ms Cook back down and told her not to move. You then asked her to perform oral sex on you again. Ms Cook requested to go to the bathroom before continuing and you allowed her to go after firstly denying her that opportunity.

11The oral or vaginal sex was consensual, however, the anal penetration was not. These are the circumstances of Charge 1 on Indictment M1101525A.1, a charge of rape.

12It is the prosecution's case that you subjectively believed Ms Cook was consenting to anal intercourse because of your acute state of intoxication. However, this was not a reasonably held belief in all the circumstances.

13Ms Cook left the bedroom and went into the spare room. She used the door jam to block the door and held her weight against it to prevent you from entering. Ms Cook then heard you calling for her. You went to the spare bedroom and tried to enter, realising Ms Cook was holding the door shut. You then punched the door and put your fist through it. This constitutes Charge 1 on Indictment M1101525B.1, intentionally damaging property.

14Ms Cook then called Triple 0 as she was afraid of what you would do if you got into the spare room. You heard her on the phone to police and called her 'A rat'. You stopped trying to get into the room and went and sat at the dining room table.

15A short time later police arrived. Ms Cook left the room and you opened the back door and attempted to climb the back fence. You fled on foot with the iPad.

16Ms Cook made disclosures to the police members about the offending. She was taken to the Geelong[3] police station and underwent a forensic medical examination. It was observed she had no physical injuries and your DNA was not located on her anal and perianal regions.

[3]A Pseudonym.

17The police located you in Ocean Grove[4] and arrested you. The iPad was found and seized. You were then taken to the Geelong[5] police station and interviewed. You made a partial 'no comment' record of interview and denied the sexual offending against Ms Cook.

[4]A Pseudonym.

[5]A Pseudonym.

18After the interview, you were served with a complaint and warrant for a family violence intervention order where Ms Cook is the affected family member. On 24 February 2021, an interim family violence intervention order was made with full exclusion conditions except for a condition allowing phone contact.  You and Ms Cook maintained contact on the phone and you resided with your father in Torquay[6].

[6]A Pseudonym.

19On 8 March 2021, Ms Cook told you on a phone call she could not forgive you for the offending and did not want to continue a relationship with you. You then made multiple emotionally manipulative comments to her, which caused her to feel scared and intimidated.

20On 23 March 2021, the intervention order between you and Ms Cook was varied to a full exclusion order, not allowing any phone contact. You were served this varied intervention order on 30 March 2021.

21Since it has been served on you, you have contravened the intervention order a number of times, which constitutes charge 2 on indictment M1101525B.1, a charge of persistent contravention of a family violence intervention order:

(a)   at about 3:20 am on Monday, 3 May 2021, you called Ms Cook on her mobile phone and left a voicemail;

(b)   at about 8:18 am on Wednesday, 5 May 2021, Ms Cook received a phone call from a private number which she answered. She did not say anything and could hear a voice which she recognised as being your voice which said, 'Hello, can you hear me?'. Ms Cook hung up as soon as she recognised your voice;

(c)   on Sunday, 9 May 2021, you sent Ms Cook a string of text messages from the phone number ending in 291. You said the following:

(i)'Us in the pool just trying to think about the good times we had';

(ii)'You will probably hate me telling you this but I’m really going down hill I haven’t told anyone and feel like I need to no you don’t talk back I smoked puff the other night and it’s got me real fucked up in the head I’ve been drinking every day and smoking bud';

(iii)'Soon as I lost you I lost myself and I really don’t feel like I have anything to live for';

(iv)'I was at a friends house tonight and holding a 3 week old baby she was so cute and it made me see what I could have had with you I really fucked things up and I’m so god dam sorry no words can say how much I am sorry'.

(d)   at 3:30am on 13 May 2021, you made a phone call to Ms Cook’s mobile phone which went unanswered;

(e)   on 14 May 2021, you sent Ms Cook a message through Tik Tok, in which you said: ‘Prudence can you give dad a call so we can have a talk about what we want to do at court I’m a bit worried about it and just want to no where your heads at'.

22Ms Cook provided a statement to police on 11 May 2021 regarding the contraventions. You were interviewed in relation to the contraventions and made a 'no comment' record of interview.

Criminal history

23Between 9 January and 10 July 2014, you appeared in the Children’s Court on three occasions and was found guilty of eleven charges. Owing to the passage of more than nine years since these findings of guilt were made and your age at the time of the offending, I place no weight upon these matters. This places you in much the same position of someone who is a first offender, even though, strictly speaking, you are not. I will treat you as a person of good character before you committed these offences. Given the circumstances of your upbringing that was an achievement in itself.   

Victim impact statement

24The victim, Prudence Cook[7], made an impact statement on 17 October 2023, which she read in court. It is a long and articulate expression of the tragic and profound effect your offending has had on her. It would not do justice to her statement by summarising it. It would be inappropriate to quote it partly or fully in these sentencing remarks.    

[7]A Pseudonym.

25However, she ended her statement by saying:

'I want to end my statement by telling you that despite these impacts, despite every day being a struggle and despite my life being shifted upside down, you did not break me. I have felt broken. I have felt un‑loveable. But you did not destroy me with your horrific actions. This, all of this, is part of my past and I will not let it become my future. I am going to have a beautiful life regardless of you and you cannot take that from me.'  

Personal

26You are now 26. You were born in Redcliffe[8], a town 44 kilometres north of Brisbane. You are a member of the Butchulla people, who are the traditional owners of Fraser Island. Butchulla land is more extensive than Fraser Island and extends into the adjacent mainland. Your indigenous heritage comes from your mother's side.

[8]A Pseudonym.

27You are the second youngest of five children and you remain close with your siblings. Your parents separated before you were born and you have five half siblings on your mother's side. Your half siblings have significant issues with drugs and alcohol, so you are reluctant to connect with them.

28Your mother raised you until you were four. You believe your mother's new partner sexually abused you and your siblings however, you have no memory of this. Similarly, you believe your mother was physically abusive towards you and your sisters. You remember your mother and her partner abusing alcohol.

29You and your siblings went to live with your father and your paternal uncle in Warrnambool[9]. Initially, you lived in a caravan but later lived in a house. You have mixed feelings about your father. On the one hand, you describe him as 'a good bloke'. On the other hand, your father assaulted you and your siblings. He practised karate and taught it to the children. He forced you and your siblings to fight. These fights resulted in injuries including broken noses. Your father made you feel inadequate and unloved at times. 

[9]A Pseudonym.

30Your father had physical and psychological problems of his own. Your father would wake up in the middle of the night and you would rub his back to give him relief. Your father's problems are described in the letter written by your brother, Lewin[10].

[10]A Pseudonym.

31You have only seen your mother twice since the age of four. You feel let down by your mother but you see how bad her life is, being part of the stolen generation.

32When you were eight, you were present when a group of armed bikies ran through your family home, causing extensive damage. You hid in a cupboard while your father and uncle escaped. Your father realised you were inside the house and with your uncle re-entered the house to rescue you. They were chased away by the bikies armed with knives and machetes. After this, the family moved to Jan Juc[11] to escape.

[11]A Pseudonym.

33Between 13 and 14, you were homeless after running away from home. You stole food while you were homeless and got into trouble.

34When 18, you were sexually assaulted by an older friend. Your friend attempted to touch your genitals while both of you slept in the same bed. At 19, your half-sister tried to grab your penis. Another family member took photos of you while you were naked.  

35You left school in Year 10 after being expelled. You then attended TAFE and studied horticulture and landscaping for two years. You completed Certificates I and II in horticulture and landscaping. Nevertheless, you struggled with learning and were bullied at school and TAFE. The bullying involved your wearing of glasses, your race and the poverty of your family. Whether at school or TAFE you were diagnosed as suffering from attention deficit hyperactivity disorder. A medicine, similar to Ritalin, was prescribed.   

36At 16, you worked as a bricklayer briefly and then for your uncle's window cleaning and painting business briefly also. Before going into custody, you worked in conservation. Your longest period of unemployment was four years, when you cared for your father.

37You started using cannabis use in Year 8 at school, as your father and uncle smoked cannabis regularly. You used cannabis to help with the symptoms of your attention deficit hyperactivity disorder and depression.  In 2020, you attended the Bunjilwarra residential drug treatment service. Owing to issues with the virus, the service ceased to operate after you had been there for six weeks. When 17, you abused alcohol while homeless. Very occasionally, you used cocaine and methylamphetamine.  

38You have had three long-term relationships. At 16, you started an eight-month relationship. At 18, there was another relationship lasting twelve months. Your third relationship involved the victim of these offences. This relationship lasted two years.

39At 20, you were admitted into a psychiatric institution after trying to hang yourself. At 14, you tried to commit suicide. While in custody, for several months, you cut yourself. Now you find prison 'a blessing in disguise'. You are painting, making friends and distancing yourself from 'toxic people'. You describe those persons as 'crackheads, some used methamphetamine, they were bad influences'.   

40While in custody, you were in lockdown for about 45 days due to the virus. There has been bullying with the remarks of one prisoner causing you concern for your safety. You are classified as an education prisoner enabling you to undertake classes in educational programmes including art, music, English and bible studies. You are part of a men's group and have met with Aboriginal elders twice. You play the didgeridoo daily.    

41Upon your release from custody, you would like to work as a landscaper. While in custody, you have painted artistically and undertaken the Torch programme.  

Psychologist

42Simon Candlish is a consultant psychologist. At the request of your solicitors, he interviewed you on four occasions in November and December 2023[12]. His report is very detailed with much of your personal details derived from it.  

[12]Report dated 2 December 2023

43Mr Candlish diagnosed you as suffering from an attention deficit hyperactivity disorder, a personality impairment and a substance use disorder (alcohol and cannabis), presently in remission because you are in custody. He assessed you as a moderate-low risk of sexual re-offending.

44More particularly, Mr Candlish considered you see yourself as defective. You have a moderate impairment in interpersonal functioning with social withdrawal and isolation, problems forming healthy and close relationships with pro-social persons, egocentricity and poor empathy and problems performing expected social and occupational roles.

45Using what he called the actuarial and structured professional judgment and a variety of assessment tools under each category, Mr Candlish assessed you as coming within the moderate-low risk category of sexual reoffending.

46In the context of the rape, he considered your personality impairment contributed through its influence on your emotional regulation and your distorted attitudes towards the victim as well as relationships more broadly.

47Mr Candlish thought you might struggle with a lengthy term of imprisonment with a period of lowered mood and increased risk of suicide.

48To him, you appeared to be a good prospect for rehabilitation even though your personality impairment will persist. He recommended various matters to be explored through psychological intervention. These matters would cover both your psychological and substance abuse issues.

49Mr Candlish then recommended approaches from a case management perspective covering your stress, employment and social activities.

References

50I have read letters from Hayden Ruggle[13], Bob Waldroup[14], your brother, Lewin Prescott[15] and Malcom Marlow[16]. They paint a positive picture of you. Your brother speaks of the difficulties you and the other children faced through your mother's mental illness and alcoholism and later through your father's ill health, which took time to diagnose and treat.     

[13]A Pseudonym.

[14]A Pseudonym.

[15]A Pseudonym.

[16]A Pseudonym.

Discussion

51Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

52Each of those sentencing purposes is relevant to your sentencing.

53S 5(2) of the Sentencing Act requires the consideration of various factors in sentencing where they are relevant to a particular case.

Maximum penalties

54The maximum penalties for the offences are:

(a)   rape – 25 years’ imprisonment;

(b)   intentionally damage property – 10 years’ imprisonment;

(c)   persistent contravention of a family violence intervention order – 5 years’ imprisonment or a fine up to 600 penalty units or both;

(d) commit an indictable offence while on bail – 3 months’ imprisonment or a fine up to 30 penalty units. This offence has an added effect. S 16(3C) of the Sentencing Act provides:

Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender whether before or at the same time as that term.

55At the time of committing the present offences, you were on bail for other charges. Ironically, those other charges were withdrawn. However, that does not affect the application of s 16(3C). It is Parliament’s way of penalising the fact you breached a central feature of bail – not to commit an offence while on bail.

Standard sentence

56On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence contained in the charge of rape is one such offence.  The standard sentence for that offence is 10 years' imprisonment.  What is the meaning of a standard sentence?

57First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[17]  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[18]  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[19]

[17]S 5A(1)(b).

[18]S 5A(3).

[19]S 5B(2)(a).

58In Brown v R[20], the Court discussed the standard sentence scheme.  At paragraph 4, it said:

“The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must take the standard sentence into account as one of the factors relevant to sentencing.  This requirement:

•is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

•does not affect the established ‘instinctive synthesis’ approach to sentencing;

•does not require or permit ‘two-stage sentencing’; and

•does not otherwise affect the matters which the court may, or must, take into account in sentencing”.

[20](2019) 59 VR 462.

Current sentencing practices

59As to current sentencing practices, I was referred to Clarke v R[21]. The nature of the penetration in that case is very different from the penetration in this case.

[21][2022] VSCA 89.

Nature and gravity of the offences

60The offending constituting the offence of rape occurred over about 40 minutes, plainly a very long time. It was preceded by consensual intercourse. Amazingly, given the nature and length of the penetration, the victim did not suffer any discernible physical injuries. However, the rape shamed her. From her impact statement, it has had a profound effect on her. Despite her positive attitude, its effect will be long lasting. 

61It occurred in the victim’s home, a home she shared with you and where she should expect to be safe. Nevertheless, it profoundly affected how she viewed the residence afterwards. As she said in her impact statement:

“…our unit was stripped of all sense of home that night”.

62As I said earlier, it is the agreed position that you believed Ms Cook was consenting to anal intercourse but this was not a reasonably held belief in all the circumstances. I accept that position despite the victim telling you on three occasions she did not want you to penetrate her anus.

63Discerning your motive for the rape is difficult where you held that belief. In paragraphs 122 to 124 of his report, Mr Candlish sought to explain the underlying reasons for your actions: sexual activity as a means to regulate your emotional state and bolster your sense of yourself; the rape occurred in the context of your conflict with the victim, your unmanaged anger, your poor insight and your disinhibition due to the taking of substances. 

64Her willingness to engage in consensual intercourse was due to the fact you were affected by alcohol and the things you said to her made her feel afraid. 

65The other charges are relatively minor examples of the offences. However, the conditions of family violence intervention orders must be obeyed strictly. It is important that courts, through its sentencing of contraventions of such order, make that clear to you and to others.

Bugmy

66Your early years have left you with a personality impairment described by Mr Candlish. This is your psychological state resulting from the effects of your formative years. It is a particular instance of the effect of a disturbing upbringing. Mr Candlish said[22]:   

'Mr Prescott’s personality impairment is of moderate severity and is directly related to childhood abuse and trauma and attachment issues with his parents. Mr Prescott was affected by alcohol at the time. He has described having been abstinent from substances for some time prior to his offences. 

Mr Prescott’s personality impairment has contributed to his issues with emotional regulation and his distorted attitudes regarding his partner as well as relationships more broadly. His personality impairment has affected his ability to effectively address relationship issues. Mr Prescott has relied on substances and sexual activity to regulate his negative mood states due to the various issues arising from his underlying personality impairment. Mr Prescott was disinhibited by substances reducing his capacity for consequential thinking and emotional regulation. He disregarded the impact of his actions due to reduced empathy and distorted views about his partner'.    

[22]At [129].

67Your personality impairment reduces the level of your moral culpability for these offences. It has no impact on the sentencing purposes of general and specific deterrence.

Verdins

68You rely on principles or limbs 5 and 6 as set out in the case of R v Verdins[23]. Both deal with the effect of imprisonment upon you.

[23](2007) 16 VR 269.

69The evidentiary basis for your reliance upon these limbs stems from this passage in Mr Candlish's report[24]:

'…Mr Prescott might struggle more in the event that he is sentenced to a lengthy period of incarceration. This is based on his fragile sense of self and his difficulties with self-direction. He might experience decompensation for some time with lowered mood, and there might be increased risk for suicide during this time'.

[24]At p 17.

70In DPP v O’Neill, the Court said[25]:

'As this Court emphasised in Verdins and many later cases careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.'

[25][2015] VSCA 325 at [68].

71These limbs, that is limbs 5 and 6, require predictions. In my experience, psychologists are cautious in their predictions and express themselves accordingly. Mr Candlish is no different with his use of the word 'might'. Mr Candlish did not say what he meant specifically by a lengthy sentence but the sentence for rape would generally fall in that category. Since suicide is the worst possible outcome for an impaired mental functioning and an elevated risk of that is something which must be viewed very seriously. Notwithstanding the prosecution's submission there is a lack of cogency in the above passage of Mr Candlish's report, the opinions are such that I will apply both limbs and moderate my sentences accordingly.   

Guilty pleas

72You were arrested on 17 May 2021 after the discovery of your contraventions of the family violence intervention order. There was a committal hearing where the victim and others gave oral evidence. In this Court, there was a s198B examination. There have been five directions hearings. You pleaded guilty to the present charges on 5 September 2023 on the first day of your trial. In terms of the timing of your guilty pleas, they occurred late in the process which starts with the laying of charges and ends with a trial by jury.  

73There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show the victim and the world in general that what she says is true. With the absence of corroborating evidence, this is an important consideration.

74Second, they relieve the victim from the need to give evidence against you in a trial. This consideration is lessened by the fact that she gave evidence at your committal hearing.  

75Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has saved the delay, time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and trials lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.

76Fourth, your guilty pleas are evidence of your remorse and I accept you are genuinely remorseful. 

77Fifth, the crisis addressed in Worboyes v R[26] and other cases has abated. Recently, this Court announced it had overcome the backlog of cases due to the pandemic. It had reached the pre-pandemic levels of pending cases. But in another respect the virus still disturbs the smooth running of jury trials in this Court, principally through the unavailability or loss of jurors. Pleading guilty now attracts some of the benefits to the system identified in the case of Worboyes.

[26][2021] VSCA 169.

78Your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to the charges but had been found guilty after a trial.    

Prospects of rehabilitation

79You were 24 years and 5 months when you committed the offence of rape and are now 26. At the time of committing the rape, you were at the outer edge of what is considered a youthful offender. There remains an element of the optimism shown to youthful offenders in terms of their ability to rehabilitate themselves. 

80Since you were youthful at the time of the offending, it requires careful consideration before one sentences a person of your age to a term of imprisonment. In Azzopardi v R[27], Redlich JA gave three reasons for that approach: 

(a)   young offenders are immature and are more prone to ill-considered or rash decisions;  

(b)   courts recognize the potential for young offenders to be redeemed and rehabilitated; and

(c)   courts sentencing young offenders recognise the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation.

[27][2011] VSCA 372 at [34] to [36].

81Apart from your guilty pleas being evidence of your remorse, your letter, addressed to the victim, shows how sorry you are for your treatment of her. I have now heard from counsel as to the timing of this document, having heard from counsel for the Director in that regard.  It's timing in those circumstances does not affect my view of its contents as evidence in remorse. This is an occasion where genuine remorse indicates a determination not to re-offend in that manner.

82Your guilty pleas are an emphatic acknowledgment of your guilt, especially in relation to the rape charge. There is little corroborating evidence of that offending although I daresay Ms Cook was a compelling witness at the committal hearing.   

83The psychologist, Mr Candlish, noted[28]:

“Mr Prescott has described finding Christianity whilst in prison and feels that this is helping him to improve his life. He has some insight into the importance of addressing his substance abuse issues. He appears motivated to improve his life and shows some receptiveness towards support services. He appears to have responded well to various programs in prison.”

[28]At [126].

84Mr Candlish assessed you as a moderate-low risk of sexual re-offending.

85One must remember you have never been sentenced to a term of imprisonment or detention. My sentences today represent a significant sentence of imprisonment for you. The sentences will act as a powerful deterrent to such offending in the future and, possibly, help with your rehabilitation.  

86Overall, I consider your prospects of rehabilitation are good.

Non parole period

87Your counsel urged me to impose a shorter than normal non parole period. I am not prepared to do that despite your prospects of rehabilitation are good. I will impose sentences which give full weight to the matters in mitigation of penalty. Your rape of the victim has caused her profound harm. It would be inappropriate to extend further leniency.   

Sentence

88On the only charge on indictment M11015251.A, a charge of rape, I sentence you to 4 years’ imprisonment.

89On the related summary charge, a charge of committing an indictable offence while on bail, I sentence you to one months’ imprisonment.

90On indictment M11015251B.1:

(a)   on charge 1, a charge of intentionally damaging property, I sentence you to one months’ imprisonment.

(b)   on charge 2, a charge of persistent contravention of a family violence intervention order, I sentence you to 3 months’ imprisonment.

91The sentence on the rape charge is the base sentence. The sentences on the other charges are to be served cumulatively upon themselves and upon the base sentence. The total effective sentence is 4 years and 5 months’ imprisonment. I will set a non-parole period of 2 years and 9 months’ imprisonment.  

92Excluding today, you have been in custody over these charges for 284 days. I will declare that period as time served under my sentences today.

S 6AAA

93If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 6 years and 10 months’ imprisonment with a non-parole period of 4 years and 2 months’ imprisonment.

S 5B(5)

94I have already said the standard sentence for rape is 10 years’ imprisonment. My sentence of 4 years’ imprisonment for that offence is obviously less than the standard sentence. It is so due to your mental state at the time of committing the offence, your guilty plea and the various other matters in mitigation including your previous good character and your prospects of rehabilitation.

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