Director of Public Prosecutions v Price
[2017] VCC 1766
•2 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION CR-16-01655
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN CHRISTIAN PRICE |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 30 October, 2017 | |
DATE OF SENTENCE: | 2 November 2017 | |
CASE MAY BE CITED AS: | DPP v PRICE | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1766 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Failure to comply with Supervision Order
Legislation Cited: Serious Sex Offenders (Supervision and Detention) Act 2009
Cases Cited:The Queen v Price [2016] VSC 105 – Lercornu v R [2012] VSCA 137 – Loader v R [2011] VSCA 292 – Philips v R [2012] VSCA 140 – The Queen v Kilic [2016] HCA 48 – The Queen v Binse [2014] VSC 253
Sentence: TES: 4 years 11 months to be served concurrently with the life sentence imposed in the Supreme Court on 18 March 2016; 3 years to be served cumulatively on the non-parole period imposed on 18 March 2016 in the Supreme Court; a new non-parole period set of 39 years 5 months, starting 2 November 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Rose SC Ms K. Churchill | OPP |
| For the Accused | Dr M. Fitzgerald | Martine Marich & Associates |
HER HONOUR:
Introduction
1 Sean Christian Price, you have pleaded guilty to a charge of failing to comply with a Supervision Order. That is an offence with a maximum sentence of five years’ imprisonment.
2 In 2012, the Secretary to the Department of Justice and Regulation applied to this court, for you to be made subject to a Supervision Order under the Serious Sex Offenders (Supervision and Detention) Act 2009.
3 On 4 May 2012, His Honour Judge Punshon granted that application, being satisfied that you posed an unacceptable risk of committing what is called “a relevant offence” if you were in the community and not the subject of a Supervision Order[1]. The order was to be in force for ten years.
[1] Section 9, Serious Sex Offenders (Supervision and Detention) Act 2009 as then in force
4 At the time the order was made, a "relevant offence" included sexual offences[2].
[2] Schedule 1, ibid
5 In 2016, the law changed to include certain violence offences as relevant offences for the purposes of a Supervision Order. At the time your order was made, and at the time you breached your Supervision Order, murder was not a “relevant offence”.
Basis for the sentence
6 By your plea of guilty to the charge of failing to comply with a Supervision Order, you have admitted that while you were the subject of that court order, you committed a relevant offence, and had no reasonable excuse to do so.
7 The Prosecution Opening[3] alleges that the relevant offence you committed is the offence of rape, committed on 19 March 2015. In support of its case, the prosecution tendered material without objection[4].
[3] Exhibit A – Prosecution Opening and Chronology
[4] Exhibits A, B, C, D and E
8 On your behalf, your counsel informed the court that you dispute that the relevant offence committed by you involved sexual penetration, and submitted that a “relevant offence’ was also defined as sexual assault, not involving sexual penetration[5]. No evidence was called by the defence.
[5] Schedule 1, Serious Sex Offenders (Supervision and Detention) Act 2009 as then in force
9 It is necessary therefore for me to decide the basis on which you are to be sentenced, that is, whether the relevant offence was one of rape, or a sexual offence not involving sexual penetration.
10 I have had regard to:
· the statement[6] of BC[7], who is the victim of the sexual offence committed by you on 19 March 2015;
[6] Exhibit E
[7] This is the form used in the Supreme Court proceeding to ensure the identity of the victim is not published: Judicial Proceedings Reports Act 1958
·
the fact that you pleaded guilty in the Supreme Court of Victoria on
25 August 2015 to the offence of rape, in which BC was named as the victim[8];
[8] Exhibit D - Reasons for Sentence of Justice Lasry, The Queen v Price [2016] VSC 105, [1]
· the fact that you had legal representation leading up to and at the date of entering your plea of guilty[9];
[9] Exhibit A - Chronology
· the finding by His Honour Justice Lasry of the Supreme Court that your [plea] of guilty [was] “a reflection of your acceptance that there was no ground for a contest”[10]
[10] Exhibit D, [88]
· the “full and complete” admissions made by you to police[11] and to mental health professionals[12], all of whom interviewed you about the events of 19 March 2015; and
· the fact that there is no evidence before me challenging these matters.
[11] Exhibit D, [87]
[12] Exhibits 2 and 3
11 As a result of all of these factors, I am satisfied beyond reasonable doubt that:
· you knew exactly what you were pleading guilty to, when entering a plea of guilty in the Supreme Court to the offence of rape, committed against BC on 19 March 2015;
· by that plea, you admitted all the elements of the offence of rape, including the element of sexual penetration; and
· therefore, the "relevant offence" for failing to comply with the Supervision Order is the offence of rape, committed against BC by you on 19 March 2015.
No double punishment
12 The offence of failing to comply with a Supervision Order has the following elements:
·
A Supervision Order was made against you and was in operation on
19 March 2015;
· Next, the Order contained a condition that you not commit a relevant offence;
· Next, you knew that the Supervision Order was in place and knew of the condition that you not commit a relevant offence;
· Next, you committed a relevant offence, namely rape, on 19 March 2015; and
· Lastly, you had no reasonable excuse for failing to comply with a condition of the Supervision Order.
13 The offence of rape has already been dealt with in the Supreme Court, and on 18 March 2016, you received a sentence of 14 years’ imprisonment[13]. My sentence of you today deals only with the failure to comply with the Supervision Order, which has a maximum sentence of 5 years’ imprisonment, as I have said.
[13] Exhibits C and D
14 The law says that you cannot be doubly punished for the one offence. However, the law also says that where there is more than one offence committed in the course of the one episode of criminal behaviour and each offence includes different elements, an offender can be prosecuted and punished for the offences arising out of that episode[14].
[14]Lecornu v R [2012] VSCA 137, [7]-[8]; [21] citing Loader v R [2011] VSCA 292, [32]
15 The offence of rape and the offence of failing to comply with a Supervision Order are different offences with different elements. Together, they reflect the totality of your criminal conduct arising from the one episode involving BC. You are to be sentenced today solely for the offence of failing to comply with the Supervision Order; in other words, only for the separate criminality constituted by your disobedience of a court order, which warrants additional punishment[15].
[15] Ibid [9]-[10]; [65]; [29] citing Loader v R [2011] VSCA 292, [54]
The Supervision Order
16 The application for the Supervision Order was made by the Secretary to the Department of Justice and Regulation following a term of imprisonment you had served for sexual and violence offences committed by you between 2002 and 2003 when you were aged 18 and 19.
17
That offending included two counts of rape and one of attempted rape amongst other sexual and violence offences. There were six victims of the sexual offending, chosen at random, as you looked for what you later described as a
‘buzz’ or ‘rush’[16].
[16] Exhibit D, [46]-[48]
18 On 11 October 2004, you were sentenced to a total effective sentence of 8 years 2 months’ imprisonment, initially to be served by way of a Hospital Security Order and later converted to imprisonment. You remained in custody from 2003 when arrested on those offences, until being granted parole in November 2010. You were diagnosed with schizophrenia after you were imprisoned and were hospitalised in the Thomas Embling Centre four times during that period in custody. You were non-compliant with medication, and you told the Supreme Court that you decided to refuse treatment, and had received none, from 2010.[17]
[17] Ibid, [66]
19 Less than a year after your release on parole from that sentence in November 2010, your parole was breached by you committing an assault on your treating psychologist and you were returned to custody. You apparently did not receive effective treatment for your psychosis during that period of custody[18].
[18] Ibid
20 From 14 May 2012[19], you were subject to a Supervision Order for 10 years, with strict conditions. The most important of these was the core condition that you not commit another relevant offence, that is, at that time, as I have explained, not commit another sexual offence[20].
[19] The Supervision Order was made on 4 May 2012, but commenced operation on 14 May 2012 on the offender’s release from custody. See Exhibits A and B
[20] Schedule 1, Serious Sex Offenders (Supervision and Detention) Act 2009 as then in force.
21 The importance of the core condition not to commit a relevant offence, which is attached to every Supervision Order, is obvious - the primary purpose of conditions is to reduce the risk of re-offending - and it is reflected in its place as first in the list of core conditions under the Serious Sex Offenders (Supervision and Detention) Act 2009[21]. The main purpose of the Act itself is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision[22].
[21] Section 16(2) ibid
[22] Section 1(1) ibid
22 In 2013 and 2014, you were returned to custody for criminal damage and assault charges, some of which were committed while you were a resident of Corella Place, a facility for housing some sexual offenders on Supervision Orders. While you were in prison, you were not subject to the conditions of the Supervision Order, although the period of the order continued to run, but you were subject to the conditions again on your release[23].
[23] Section 12 ibid
23 In 2014, it seems that the Supervision Order was reviewed by this court, and presumably confirmed. You were assessed by forensic and clinical psychologist Professor Ogloff, who provided a progress report as part of the review[24], and he confirmed your diagnosis of schizophrenia, possibly dating back to the age of 16 years, and an anti-social personality disorder. He described your risk of sexual re-offending then as moderate, but said you had a high degree of instability and impulsivity.
[24] Exhibit D, [68]
24 You remained in custody until 2 October 2014, when you were released into the community, subject to the Supervision Order. You met weekly with a supervisor from the Office of Corrections. As appears from the earlier chronology, it seems you had not had treatment since you refused it while in custody in 2010. The supervisor was concerned that you had had no treatment at least since your release in October 2014, and in February 2015, he urged that funding be provided for a private psychology service and that alternative treatment options be explored for you. At that time, you were not demonstrating any symptoms of schizophrenia, and so no medical treatment took place[25].
[25] Ibid [70]-[71]
25 His Honour Justice Lasry in his Sentencing Remarks of 18 March 2016, detailed what happened after your release in October 2014, until the commission of the offences for which he was sentencing you[26]. I will not repeat that history.
[26] Ibid [5]-[7], [50]-[58]
26 What I must consider for my sentencing of you for failing to comply with the Supervision Order is what you did in committing the relevant offence of rape.
The commission of the relevant offence
27 I have had regard to the statement of BC[27], and to the outline of the commission of the offence of rape in the Sentencing Remarks of Justice Lasry[28].
[27] Exhibit E
[28] Exhibit D [28]-[35]
28 In summary, you decided to commit the offence of rape, and thereby breach your Supervision Order, to obtain some form of sexual gratification, before being arrested for the murder you had committed two days earlier and for which you expected to receive a life sentence of imprisonment. The breach of the condition of the Supervision Order was therefore planned, and focused on committing exactly the same serious sexual offence for which you had been placed on the Supervision Order.
29 The initial target of the rape in a video store was saved by you being thwarted by customers being present. This did not stop you from continuing with your proposed offence of rape which you knew would breach your Supervision Order. You left the video store after about 25 minutes, went to the bookshop next door and there found BC alone. After requesting her to show you where certain books were kept, you found this took you both to the back of the shop where you could not be seen.
30 You executed your plan by grabbing BC from behind, putting your hand over her mouth in an attempt to prevent her from screaming, and forcing her to the floor. She did scream, and you pressed hard on her throat. You intentionally sexually penetrated her, and taunted her about her religion. As the crime continued, you became enraged and began choking her, causing her to almost black out, but BC fought as hard as she could and attempted to ensure that some of your DNA remained at the scene for later identification of you by putting her fingers in your mouth. When you were disturbed by others who had come in response to BC’s screams, you escaped in a desperate and violent manner despite their attempts to block your path.
31
Well aware that you were wanted by police for the murder committed two days earlier, and having fulfilled your shocking purpose of committing a rape for sexual gratification before being taken into custody, within minutes of the criminal episode that involved the rape and the breach of your
Supervision Order, you went to the Office of Corrections, your supervisor for the Supervision Order contacted police, and you were arrested there.
Impact on the victim
32 The impact of you failing to comply with the Supervision Order by committing this offence of rape has had a severe impact on BC. She provided a Victim Impact Statement to the Supreme Court[29] in respect of the offence of rape and I quote from Justice Lasry’s remarks[30]:
“BC suffered multiple bruises, scratches and abrasions to her head, face, neck, shoulder, hip and back. The psychological and emotional injuries you inflicted on her and her family were very severe. Indifferent to her fate, you left the scene unaware as to whether you had killed her or not. You later asked the interviewing officer whether she was still alive. In [Justice Lasry’s view], the urges which led you to commit similar offences in 2002 and 2003…were operating on you when you attacked BC. Your conduct was disgusting.”
[29] This statement was not tendered in this matter.
[30] Exhibit D, [34]
33 I agree with His Honour’s assessment.
34 Further, since His Honour made those observations, BC has been through the drawn out process of the hearing of the charge of failing to comply with the Supervision Order. The Director of Public Prosecutions filed a direct indictment in this court on 27 September 2016, six months after you had been sentenced for the breaching offence of rape. The matter was listed for hearing on three separate occasions but was adjourned each time on your application because you were either not legally aided, or not legally represented, or your legal representatives needed time to obtain and consider further material in deciding how the charge would be dealt with. There were numerous other directions hearings as efforts were made to determine how the case would proceed.
35
The prosecution made it clear from the outset that BC would not be called to give evidence and so she was not subject to that traumatic expectation, but she was subject to a great deal of stress from the delays, and from the uncertainty of whether you would plead guilty or not guilty to the charge of failing to comply, culminating in the way you behaved when the charge was read to you on
Friday 27 October 2017. I will deal with that aspect further in a moment.
36 The prosecutor informed me that, until this process is finished, BC is unable to commence treatment for the psychological impact she suffered as a result of your shocking attack on her. The length of this process - two and a half years from the commission of the breaching offence of rape, and 13 months from the filing of the charge of failing to comply - has therefore delayed that treatment and I accept the delay has added considerably to her suffering.
37 BC has been present in this court for every hearing. She has shown incredible bravery and strength, both throughout the ordeal of the offending and through the ensuing criminal process, and is to be commended for the dignified way she has conducted herself in court. For BC, I adopt Justice Lasry’s comments made about all the victims he was dealing with, including her, that
“the wounds of [Mr Price’s] violent conduct have developed into a sadness and trauma that detracts from every aspect of their lives. However, these [victim impact] statements have showed the empowering qualities of dignity and courage, of which each person should be proud. They demonstrate resilience even in the face of [his] extreme conduct and hearten the faith of the community in the human spirit.”[31]
[31] Ibid [43]
38 I hope that with today’s sentence, BC will finally be able to take the first steps on the road to recovery. She should now take every opportunity presented to her to assist with her recovery. I do wish her and her family well for the future.
Criminal History
39 Returning to you, Mr Price, your criminal history is significant for the seriousness of the offending you have engaged in since the age of 18, which is reflected in the fact that you, now aged 33, have spent only two periods of time in the community since the age of 19, for nine months and six months respectively[32].
[32] Exhibit 3 – Report of Mr Coffey, [36]
40 I have already referred to the sentence you received for sexual and violent offences in October 2004. Justice Lasry formed the view that in several of these incidents, your conduct was very similar to the sexual attack on BC, the offence which breached your Supervision Order, which you had been placed on after the sentence you served for those earlier incidents. That makes those convictions in October 2004 highly relevant to my sentence today.
41 I do not take into account as prior convictions the convictions you received after 19 March 2015, but these are of course still relevant in considering your current situation, including any prospects for rehabilitation.
42
I also note that you have not previously been convicted of a breach of a court order, but this does not provide you with much by way of mitigation, as it is the fact that convictions recorded after May 2012 were for offences committed while on a court order - the Supervision Order - and the offences committed on
17 and 19 March 2015, were committed not just while on the Supervision Order, but also while on bail for the offence of threatening to kill, committed in September 2014 and for which you were convicted in January 2016. Further, I have already mentioned that the assault you committed in 2011 breached your parole granted in 2010.
Personal circumstances and mental health presentation
43 I was provided with the psychiatric report of Dr Zimmerman dated 27 July 2015[33], and the psychological report of Mr Coffey dated 7 December 2015[34], both of which had also been tendered to the court on your behalf in your Supreme Court plea proceedings.
[33] Exhibit 2
[34] Exhibit 3
44 Your personal circumstances were succinctly summarised by Mr Coffey[35] and in Justice Lasry’s sentencing remarks[36] and I note these as follows: you were ‘bequeathed with almost every conceivable developmental contribution to adult mental disorder’.
[35] Ibid, [141]
[36] Exhibit D, [64]
45 They are…a strong history of mental illness…appear[s] to have suffered a perinatal head trauma…significantly delayed in speaking and learning to read... mother suffered depression…father was a heroin addict…family violence between your mother and her [new] partners…from an early age, physically mistreated by your mother and stepfather…from an early age, sexually abused by relatives and carers…changed schools frequently and [were] bullied…had learning difficulties…associated with criminals by early to mid-adolescence… abuse[d] psychoactive substances including marijuana and amphetamines… suffered a series of losses of consciousness due to fighting…lacked any stable friendships or guidance from a parent or mentor…by age 16 or 17 began to manifest signs of psychotic illness but did not receive treatment and [the] psychosis and substance addictions became entrenched…imprisoned when 19 years old…for extended periods during [the] imprisonment, suffered a severe psychotic illness…and since [the] first imprisonment [at age 19], spent only fifteen months in the community.
46 Mr Coffey formed the view that it was this long sequence of experiences through childhood and adolescence which created a profound and disabling disturbance of your personality[37].
[37] Exhibit 3, [142]
47 I make the observation that it seems society is now paying, through crimes committed against all your victims, for the abuse perpetrated by others on you as a child. The whole community has a responsibility to protect children from harm, and to protect future possible victims from harm caused by abused children when they become adults.
48 Dr Zimmerman assessed you on 21 July 2015, noting your diagnosis of paranoid schizophrenia, and that the deterioration in your mental state from February 2015 when there was planned to be a change in your case manager for the Supervision Order, was consistent with the diagnosis of Borderline Personality Disorder.
Plea of guilty and remorse
49 It was submitted on your behalf that, although the circumstances of the offence of rape which constituted the breaching offence were extremely serious, there was a lack of some factors which appear in other comparably serious offences of rape, and in combination with the utilitarian value of your guilty plea this justified a sentence for failing to comply with the Supervision Order which is less than the maximum sentence.
50 The prosecutor submitted that the late entry of the plea of guilty had very limited application, and that, while it was conceded that there was a utilitarian benefit, it was open to the court not to impose a less severe sentence simply because of the plea of guilty.
51 The law is clear that it is only in a rare case that an offender will not get a sentencing discount for pleading guilty where there is a utilitarian benefit[38]. However, in my view, a rare case may be one that is “so grave as to warrant the imposition of the maximum prescribed penalty”, “having regard to both the nature of the crime and the circumstances of the criminal”[39].
[38]Philips v R [2012] VSCA 140
[39]The Queen v Kilic [2016] HCA 48
52 In this case, I have decided, although the plea was entered only on the afternoon of the last working day before the trial was to commence, there is still a utilitarian benefit.
53 Because of the likely knowledge of any potential juror of your criminal history, a large panel of 100 people was to be assembled on the morning of the trial, in order to obtain a jury consisting of people who felt they could be impartial despite that knowledge. Many hours were spent by the court, court staff, Juries Commissioner’s Office, court technology staff and legal representatives in designing an empanelment process that was to use two courts and the Jury Pool Room in this building, with video link connections. Further, no other jury could be empanelled until the jury in this case was empanelled. Also, because of the material that had previously been provided to me, and as agreed by your legal representatives, I ordered that a secure dock be set up, which also required time and the involvement of more court staff.
54 When you entered your plea of guilty on the Friday afternoon, it was no longer necessary for most of this process to take place on the following Monday. Therefore, you will receive a discount for the saving in resources for the trial to proceed in that way on the following Monday and Tuesday, even though much of the work had been done already. There is no benefit flowing to you for your late plea of guilty saving BC from the trauma of giving evidence, as may be the situation in other cases; it is neutral because, as I said earlier, it was never proposed that she give evidence in this case.
55 I am satisfied that there is no other benefit to you from the plea of guilty. Given the way you acted throughout the arraignment process, the plea of guilty when eventually entered shows absolutely no remorse and no willingness to facilitate the course of justice.
56 I was referred by your counsel to what Dr Zimmerman reported you as saying to her: “that [you] acted like an animal in the bookshop; that [you] accepted that [you] sexually violated the woman and that she didn’t deserve it”.[40]
[40] Exhibit B, [76]
57 While that might be seen as an expression of remorse, in my view, it is cancelled out by what you had earlier said to police in your Record of Interview, as referred to by Justice Lasry in his Sentencing Remarks[41], and by your conduct in many of the hearings in this court, since the filing of the indictment in September 2016, culminating in your behaviour last Friday, and again on Monday during the plea hearing and again today, which led to the disconnection of the video link during the sentencing.
[41] Exhibit D, [38]-[39], [87]
58 I find there is no remorse.
Prospects of rehabilitation
59 Justice Lasry was unable to say anything positive about your prospects for rehabilitation[42]. Nineteen months have passed since then, and I can offer no more hope than His Honour could.
[42] Ibid [92]
60 Dr Zimmerman reported that you told her in July 2015 that you will not be taking any antipsychotic medicine and she noted that your psychotic illness deteriorated significantly and repeatedly during your previous term of imprisonment from 2003 to 2010, that you are at risk of deterioration again or were as at July 2015, and that as medication cannot be given to you against your will, if medication is necessary you will have to be transferred to the Thomas Embling Centre again.
61 Mr Coffey thought that your conditions of incarceration as at December 2015 were not compatible with improvements in your psychological wellbeing. Further, although he considered that specialist treatment is capable of improving your mental health, he thought it uncertain the extent to which interventions will be able to significantly reduce your impairments in your personality functioning, and decrease the risk of violent re-offending. In my view, this is even more uncertain given your more onerous custody conditions since he made his report, and given that you have said you will not be taking any antipsychotic medication.
62 You are still a relatively young man at 33 years, but you will not be eligible for parole under your current sentence before you are 70 years old. You are in need of a great deal of assistance, but there is a large question over whether you will get that assistance, and if it is offered, whether you will accept it.
63
Dr Zimmerman, Mr Coffey and Justice Lasry all thought that your mental health would deteriorate further in custody. I have no current assessment of your mental health, and do not know if the regular psychiatric review urged by
Dr Zimmerman has occurred in the time since you were sentenced in the Supreme Court.
Other sentencing principles
64 Your current circumstances include that you are a High Risk Escort Prisoner, and since August 2016, you have been in the new High Security Management Unit of Barwon Prison, where you have access to a small yard adjoining your cell, but are not permitted to have any physical interaction with other prisoners, and so have just one hour a day out of your cell, alone in a larger area. You interact only with prison officers.
65 Even though it is not disputed by counsel on your behalf that the sentence I am to impose for failing to comply with the Supervision Order must seek to deter others from breaching conditions of their Supervision Orders, and must seek to deter you from committing offences in future, even though a significant prison term imposed on you has not achieved that purpose in the past, it was submitted on your behalf that your current circumstances should be considered in determining any increment on your current non-parole period.
66 I was referred by your counsel to a case which says that there is no rule that where a prisoner’s conduct results in them being placed in a restrictive prison environment, that fact disentitles them to a sentencing benefit[43]. I accept this proposition.
[43]The Queen v Binse [2014] VSC 253
67 However, you are a repeat offender of serious sexual crimes, and failed to comply with a court order which was put in place for the main purpose of protecting the community from you. In those circumstances, any mitigating factors flowing from your personal circumstances must be balanced against the fact that your re-offending increases your moral culpability and the risk of further offending. As was found at the time of the making of the Supervision Order, you pose a considerable threat to the community, and this has been borne out by the dreadful outcome of you not complying with the Supervision Order. The need to protect the community is the most prominent purpose in my sentence of you today, and your severely disadvantaged background and current circumstances attract correspondingly less weight as mitigating factors.
68 For the system of Supervision Orders to work towards the purpose of protecting the community, offenders placed on Supervision Orders must comply with the conditions of their Order, and if they do not, the consequences must reflect that it is a court order that has been breached, and the seriousness of the breach must be reflected in the sentence. In circumstances where the breach involves further offending, the level of gravity is high. Even more so, if the further offending involves another sexual offence, especially if it is of a serious kind. All of those remarks apply in this case.
Conclusion
69 Your counsel submitted that I should have regard to the principle of totality in deciding the length of the sentence to impose on you today, and in deciding the degree to which today's sentence will be concurrent with the non-parole period imposed by Justice Lasry. That means, the sentence I impose and the sentence you are undergoing, taken as a whole, should reflect the whole of your offending and not be out of proportion with it. He also urged me to take into account your current circumstances, as I have said, in determining any increment on your current non-parole period.
70 Without your plea of guilty, I would have imposed the maximum prescribed sentence of 5 years’ imprisonment. I would have done so for the following reasons, adopting those that are applicable, and with which I agree, from the Sentencing Remarks of Justice Lasry[44]:
[44] Exhibit D, [93]
(a) You have a significant and violent criminal history from which you have not progressed;
(b) You planned to commit the breaching offence of rape and continued to pursue that plan when at first thwarted;
(c) The breaching offence of raping BC was committed as a consequence of murdering Masa Vukotic, when you knew you would be in prison for a lengthy period, and was committed purely for your sexual gratification in the hope that it would sustain you over that period;
(d) The breaching offence of raping BC was violent and callous. It emulated offences you had committed 10 years earlier and demonstrates that you have made no progress in that time;
(e) You are without any form of remorse;
(f) Your immediate prospects for any form of rehabilitation are bleak at best, if not non-existent; and
(g) In the absence of appropriate treatment, you are now and will remain a significant danger to the community for the immediate future. I cannot predict what will be the situation in the future.
71 I have decided that there should be significant cumulation of today’s sentence, on the sentence you are undergoing, because of the seriousness of the failure to comply with a Supervision Order by relevant offending. Despite its seriousness however, I will not order total cumulation, because the offending for which I am sentencing you arises out of the one criminal episode for which you have already received a sentence of 14 years’ imprisonment, because you are already serving a life sentence and so no sentence I impose today can increase that, and because, as I have said, it is impossible to predict what your prospects will be when you are eligible for release aged in your 70’s.
72 The final reason why I will not order total cumulation on the non-parole period is found in this final quote from His Honour Justice Lasry when he determined to set a non-parole period for the life sentence he imposed on the murder charge:
“…given your history and age, I am unable to exclude an element of mercy and hope from your sentence, however remote that may seem to you. It is often said that the civilisation of our community is judged by the way we treat people like you, despite the fact that you cared not at all for the victims of your crimes.”
Sentence
73 On the charge of failing to comply with a Supervision Order, you are convicted and sentenced to 4 years 11 months’ imprisonment. That head sentence is concurrent with the life sentence imposed by His Honour Justice Lasry.
74 If you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is the maximum prescribed sentence of 5 years’ imprisonment.
75 Having regard to the factors I have referred to in these remarks, to the life sentence and the current non-parole period of 38 years, and allowing for the period of about 19 months you have already served on the sentence imposed on 18 March 2016, I direct that 3 years of the sentence imposed today be served cumulatively on the non-parole period imposed on 18 March 2016 by His Honour Justice Lasry. That makes a global non-parole period of 41 years.
76 Pursuant to Section 14 Sentencing Act, I fix a new single non-parole period in respect of all the sentences you are to serve and complete of 39 years, 5 months’ imprisonment. That new non-parole period starts today, 2 November 2017.
77 For completeness, I confirm that the declaration as to pre-sentence detention made by His Honour Justice Lasry continues to apply. Now could I just check with counsel that the orders have been correctly pronounced? That is to say I can only deal with a non-parole period and I have to set a new parole period.
78 MR ROSE: Yes, Your Honour.
79 DR FITZGERALD: Yes.
80 HER HONOUR: Thank you. I neglected to say to the prisoner before the video link was disconnected that I will facilitate the availability of a recording, should he choose to listen to the sentencing remarks and an unrevised version, a written version will be provided to the legal representatives for both parties and so Dr Fitzgerald, you may facilitate a written copy to be provided to him, should he wish to see it.
81 DR FITZGERALD: As Your Honour pleases.
82 HER HONOUR: Could I once again thank counsel for their assistance in this matter and all of those in court who have been involved in this matter.
83 MR ROSE: Your Honour pleases.
84 DR FITZGERALD: Your Honour pleases.
85 HER HONOUR: Yes, adjourn the court until 9.30 tomorrow please.
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