Director of Public Prosecutions v Radovilsky
[2022] VCC 643
•11 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. 18-02232
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL RADOVILSKY |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATES OF TRIAL: | 10 February 2022 – 18 February 2022 |
DATE OF HEARING: | 15 March 2022 |
DATE OF SENTENCE: | 11 May 2022 |
CASE MAY BE CITED AS: | DPP v Radovilsky |
MEDIUM NEUTRAL CITATION: | [2022] VCC 643 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Trial – 5 charges of rape – Make threat to kill – Mental health – Guarded prospects of rehabilitation – High moral culpability – COVID-19 pandemic
Legislation Cited: Sentencing Act 1991 ss 5, 5B(2)(a), 5B(2)(b), 6E, 6F, 18; Sex Offenders Registration Act 2005 s 11(6).
Cases Cited:Akoka v The Queen [2017] VSCA 214; Arthars v The Queen [2004] VSCA 222; Bowden v The Queen [2013] VSCA 382; Brown v The Queen [2019] VSCA 286; DPP v Bek [2021] VSCA 88; Jurj and Miftode v The Queen; DPP v Jurj and Miftode [2016] VSCA 57; Lockyer v R [2020] VSCA 321; R v Drake [2019] VSCA 293; R v Verdins & Ors [2007] VSCA 102.
Sentence:11 years imprisonment. Non-parole period of 7 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Cara Foot | Office of Public Prosecutions |
For the Accused | Theo Kassimatis QC Felicity Fox | RKL Lawyers and Consultants |
HER HONOUR:
1 Michael RADOVILSKY, following a seven-day trial on 18 February 2022 a jury found you guilty of one charge of make threat to kill and 5 charges of rape. The maximum penalty for threat to kill is 10 years’ imprisonment and the maximum sentence for rape is 25 years' imprisonment. The standard sentence for rape is imprisonment of 10 years. As rape is a category 1 offence, a sentence of imprisonment is mandatory.
Circumstances of the offending
2 The complainant in this matter is Sarah Page.[1] I note here in accordance with protocol that when this sentence is published the victim’s name will be anonymised to protect her privacy.
[1] A pseudonym.
3 On Sunday 20 May 2018, Ms Page had spent the afternoon and evening with friends at various venues in St Kilda. She was drinking throughout the afternoon and was clearly affected by alcohol and likely other substances. She parted ways with her friend, Ms Kathleen Jones[2] at approximately 8:00PM. Ms Page returned to the Vineyard Bar but because of how she presented, was not let back in and spent some time outside with the security guards. It was here that she first met you. She recalled speaking to a male she had never previously met and leaving the venue with him and getting into a taxi. Her next memory was of being at your apartment.
[2] A pseudonym.
4 In summary, Ms Page gave the following evidence: she saw you lock the door, realised she was in trouble and sobered up very quickly; you effectively made her smoke from an ice pipe and she had a puff, though she did not recall it having any effect on her; you then produced a knife and started discussing really morbid things about how you had always wanted to kill somebody and that you were intending on killing her. You were saying things like ‘maybe I will kill you,’ ‘yes I will kill you’, she was trying to engage in conversation with you to distract you as she thought she was going to die. Those circumstances comprise the threat to kill charge. You then said words to the effect of ‘I would like to have sex with you’ and she went along with it ‘as she would have done anything to just stay alive for a bit longer’. In fear for her life, she took off her top and then she remembers lying on the bed, naked and frozen, while you committed various sexual acts. The knife was placed next to the bed and remained within reach.
5 You introduced your penis into her vagina (Charge 3) and digitally penetrated her (Charge 4). These charges relate to penetrating Ms Page with your fingers and trying to penetrate her with your penis, which you managed to do so for a little bit, on her account. When you could not maintain an erection you put your penis in her mouth (Charge 5). In respect of Charges 6 and 7 Ms Page described you as alternating between penetrating her vagina and bottom with your penis. During the anal penetration she said ‘no’ involuntarily but you just kept going.
6 Ms Page gave evidence that she did not believe you were wearing a condom and you admit in your interview to not wearing one. She was also reasonably confident that you had ejaculated inside of her.
7 After the sexual acts, Ms Page gave evidence that you placed cable ties around her wrists so that she would not go anywhere while you had a shower. After showering, you spoke with Ms Page and told her that you would go to the ATM so that she could take out money for you. You let her use her phone to call an Uber and she opportunistically dialled 000. She also transferred some money out of her account. You exited the flat together, an Uber arrived, and Ms Page got into the car, quickly closed the door and told the driver to drive. She returned home and shortly afterwards she and her husband attended at the police station to report this matter.
8 On 21 May 2018 you were located near your apartment and arrested. You participated in a record of interview with the police. In that interview, you admit to meeting and having sex with Ms Page. You denied threatening to kill her, indicating that she had raised fantasising about how she wanted to die and that you were only ‘playing along with her’. You said that the sex was consensual and that she played a willing, active and initiating role.
9 I accept that the jury’s verdicts are consistent with Ms Page’s evidence at trial and also consistent with a rejection of the version of events you gave in your record of interview with police and I sentence you on this basis.
Gravity of the offending
10 In formulating an appropriate sentence to be imposed, Mr Radovilsky, I must have regard to the gravity of your offending.
11 Rape is an inherently serious offence as indicated by the maximum penalty of 25 years' imprisonment fixed by Parliament.
12 As conceded by your counsel, Mr Kassimatis, your offending is serious, and while I note that you suffer from some cognitive deficits I regard your moral culpability as high. As outlined above there was clearly a lead up to the offending in that you came across Ms Page and the two of you went back to your apartment. There are no charges that relate to this initial period, and I am unable, and do not, make findings that this was part of some planning on your behalf to commit the offences that later took place in the apartment. I am not satisfied to the requisite standard that your offending was premeditated.
13 The charges concern what occurred in your apartment. In terms of the offending itself I accept that there are more serious examples of such offending and there are certain aggravating features that are absent in your case - you did not offend in company, your offending did not involve the application of actual physical force or overt physical violence and there were no physical injuries sustained during the commission of the offending. Of course, Mr Radovilsky, rape is an inherently violent act and an invasion of a person’s bodily integrity. On any view your offending against Ms Page in that apartment was serious and brazen. With reference to some of the features identified in Jurj and Miftode v The Queen; DPP v Jurj and Miftode and as referred to by the prosecutor, Ms Foot: your offending was relatively protracted (while the sexual acts may have been within relatively short compass of one another Ms Page was in your apartment from approximately 9.42PM to 1:00AM); Ms Page was subjected to five separate acts of penetration, including vaginal, oral, digital and anal; you used threats of violence against her and brandished a knife; your offending humiliated and degraded her; you did not use a condom thus potentially exposing her to the risk of a sexually transmitted disease or pregnancy; she was alone and vulnerable in an unfamiliar apartment and you used cable ties at the end of it as a form of restrain against her.
14 As I regard the threats and use of the knife as overlapping with, and/or aggravating features, of the rapes themselves, I intend to order concurrency on the threat to kill charge so as to avoid double punishment. I take into account all the circumstances of your offending but note that you will not be sentenced for offending that is not the subject of a charge.
15 As both parties agreed, your offending is serious and the only appropriate sentence, in all the circumstances, is a substantial term of imprisonment.
16 In your case, a serious sexual offender regime applies in relation to Charges 4, 5, 6 and 7. While s6E of the Sentencing Act must be regarded as moderating and limiting totality, the principle remains relevant, as does proportionality.[3] Although the 6 charges represent separate acts, they do all arise from the one confined episode and I will ensure that the relevant principles are reflected in appropriate orders for cumulation and concurrency.
[3] RHMcL v R (2000) 203 CLR, [76].
17 Further, I note that counsel for the prosecution does not seek a disproportionate sentence and I do not propose to impose sentences which are disproportionate to the gravity of each offence considered in light of the objective circumstances. The protection of the community must be regarded as the principal purpose for which the sentence is to be imposed on these charges.
Procedural history
18 As noted, on 21 May 2018 you were arrested and remanded in custody.
19 On 30 and 31 October 2018 a contested committal proceeded.
20 On 13 November 2018 you were bailed on stringent conditions, including a residential rehabilitation condition. Your matter was first listed for trial on 7 October 2019 but this date was vacated due to further evidence produced by the prosecution, which ultimately was not relied upon. On 23 November 2020 your trial was again vacated due to COVID-19 restrictions.
21 At the conclusion of your trial and the jury verdicts on 18 February 2022 you were again remanded in custody. You have a total of 265 days in pre-sentence detention.
22 Of course, you pursued this matter to trial, Mr Radovilsky, which means that you do not obtain the mitigatory benefit of a plea of guilty in these proceedings.
Victim Impact
23 I received a Victim Impact Statement from Ms Page dated 6 March 2022 (Exhibit C). It is detailed, very well written and powerful. She speaks of the many adverse psychological, physical, economic and social effects of your offending. In the immediate aftermath to your offending, she was extremely anxious, fearful and traumatised. She states, ‘I was consumed with guilt and shame and became very depressed, convinced I had caused this, that I was worthless and that everyone I cared about was better off without me. I eventually attempted suicide. I live in fear of my mental health deteriorating to that degree again. I have been diagnosed with PTSD, depression and anxiety.’
24 The effects of your offending, Mr Radovilsky, have been ongoing and pervasive; she states, ‘This incident has changed the way my body and mind respond to almost everything I experience.’ ‘Everyday situations that were once no problem for me are now more complicated and provoke feelings of fear.’ It has tainted many events for her including the subsequent birth of her child. Social invitations which she once welcomed, she now dreads; she has lost confidence and trust in herself and others; she has tried to change her appearance to seem less desirable to potential predators. She went from being a high functioning, proud professional to no longer being able to perform at this level because her ‘mind was deteriorating’ and it ‘shattered [her] confidence.’ She states, ‘I can’t help but mourn the career and opportunities I could have had.’ I take the impact and the effect of your offending on Ms Page into account in sentencing you.
Prior criminal history
25 You have a relatively limited prior criminal history, mainly related it seems to your drug addiction over the years. You have received monetary penalties, adjourned undertakings and community corrections orders. While your history is relevant, importantly you have no prior history for sexual or violent offending. You have also never been sentenced to a term of imprisonment.
Personal circumstances
26 Your personal circumstances were canvassed in detail at your plea hearing and in the various reports that were tendered.
27 You were raised by your parents in Elwood and have one sibling. They migrated here from the Ukraine. Your father worked as a fitter and turner and your mother worked as a medical receptionist. You lived with your maternal grandparents for a period and they effectively raised you up until you were around 10 years of age.
28 You attended a private Jewish primary school, and from years 7 to 11 you attended McKinnon Secondary College. Following this, you transferred to a TAFE college where you enrolled in a two-year diploma in business marketing. You completed and graduated from that course.
29 You were employed in a variety of sales positions after completing TAFE. At the age of 25 you enrolled in the army. You completed your training and you were transferred to Darwin where you remained for two years. During this time, you were seriously assaulted and suffered a significant injury, which I will return to shortly. You were medically discharged in November 2009.
30 You commenced using speed when you were approximately 18 years of age. At 20 you commenced using methylamphetamine. You used up to five points per day until you enlisted in the army. When you were medically discharged at 28 years of age, you recommenced your drug use and this continued up until your initial remand on these matters.
31 At the time of your offending, you were living on your own. Your life was apparently chaotic, you were using ice daily, you were suffering from an addiction to gambling and you had been barred or excluded from a number of venues in St Kilda.
32 You returned to live with your parents in Melbourne in approximately 2020. Both of your parents are advanced in their age and suffer from a range of medical conditions, as outlined in a letter from Dr Linda Landa, of 25 February 2022.
33 You have not had any stable employment since your discharge from the army. In recent times you were placed on the disability support pension.
34 You retain the ongoing support of your family, including your parents and your brother-in-law. You are otherwise single and have no children.
35 I take into account your personal history in sentencing you.
Factors in mitigation
36 A number of factors were advanced on your behalf by Mr Kassimatis in mitigation and they are as follows:
Health
37 The Court received medical material relevant to the significant head injury you sustained in September 2008 while stationed with the army in Darwin. The material confirms that you suffered a right Middle Cerebral Artery infarction (MCA stroke) secondary to an assault that caused a right internal Carotid Artery dissection and resulted in left hemiparesis, impaired balance and cognitive deficits. Reports at the time indicated impaired new learning and short-term memory, as well as difficulty with sustained concentration, impaired planning skills, and difficulty in deductive reasoning.
38 A repeat neuropsychological assessment was completed on 10 June 2009, indicating that your cognitive difficulties had improved substantially but that ‘subtle difficulties with new learning and short term memory’ persisted. As such, ‘it was considered [you] only had very mild or subtle difficulties with cognition and [you were] expected to further improve over the next 6-12 months.’
39 The Court was also provided with a neuropsychological report of Ms Judy Tang of 22 August 2018. You were assessed by Ms Tang during your initial remand period on the current matters. She administered a number of formal tests and offered the following opinions:
· Your full-scale IQ was within the ‘average’ range.
· You demonstrated mild impairments in the areas of – visuo-spatial functions, verbal learning and memory, inhibition of automatic responses and attention span.
· Your cognitive profile, characterised by mild attentional and executive dysfunction, was consistent with the effects of the right MCA infarction you sustained in September 2008.
· You meet the criteria for a permanent condition resulting in mild function impairment related to neurological or cognitive function. It is a permanent condition and further recovery in function is not expected.
· Your condition would not preclude you from undertaking a residential rehabilitation course, which she highly recommended, provided your special needs were noted or accommodated.
40 You were recently assessed by clinical neuropsychologist Ms Nga Yan Tse who provided a report of 3 May 2022. The report concludes that the neuropsychological assessment of Ms Tang in 2018 likely remains a reasonable representation of your cognitive strengths and weaknesses. While she considered that your performance may have led to an
under-representation of the extent of your cognitive ability, she was nevertheless able to provide the further following opinions:
· Your history was suggestive of Attention Deficit Hyperactivity Disorder (ADHD) with a combined presentation in accordance with the DSM-5 diagnostic criteria. These symptoms have persisted into adulthood. She recommends you explore the option of stimulant medications to assist in managing your difficulties.
· Features of social and communication difficulties raise the possibility of Autism Spectrum Disorder (ASD) warranting a comprehensive psychiatric evaluation.
· Based on your current behavioural presentation, and the 2018 neuropsychological assessment results, as well as strong evidence of ADHD and the possibility of ASD, you represent a higher risk of poorly coping within prison due to your cognitive and social functioning difficulties.
41 I also note that you reported to Ms Tse ongoing left upper limb weakness resulting in reliance on your non-dominant right hand for tasks and a painful left ankle.
42 I take into account your health and your mild cognitive impairments along with the diagnosis of ADHD and possible ASD. I accept that your acquired brain injury which impacts on your functioning in the manner outlined in the report of Ms Tse, including on your ability to learn and remember new information and poor self-management, does call for a sensible moderation of general deterrence as a sentencing consideration. I only give this limited weight in light of all the circumstances and the evidence before me as to the nature and severity of your symptoms and the effect of them on your mental capacity. Also, I accept that the 5th limb of Verdins[4] application in your case, in that the existence of your conditions means that a custodial sentence will weigh more heavily on you than it would to a person in normal health.
Time on bail
[4] R v Verdins & Ors [2007] VSCA 102.
43 You were bailed on 30 November 2018 to a DayHab in-patient facility for treatment in a 90-day program. You also attended the local ‘Jew in Recovery’ program on a fortnightly basis, and attended Narcotics Anonymous when COVID-19 restrictions allowed.
44 I take these matters into account in assessing your prospects of rehabilitation. Your sentence will also reflect an allowance for the time you spent in an
in-patient facility, in accordance with the principles outlined in the case of Akoka.[5]
Time in custody
[5]Akoka v The Queen [2017] VSCA 214.
45 Your counsel, Mr Kassimatis, also made the submission that custody has been, and is likely to continue to be, more onerous because of the COVID-19 related restrictions. It is well know that as a result of the impact of COVID-19, and measures taken by Corrections, that the prison environment continues to be strictly controlled and I accept that this represents an additional burden.
46 Also, I accept that in custody you will experience concern and anxiety for your elderly parents, with whom you were living prior to your remand. The letter of Dr Landa confirms that your mother suffers from arthritis, diabetes, hypertension, significant mobility impairment and other medical conditions. Your father also suffers from a range of conditions including prostate cancer, bowel cancer, diabetes, hypertension and decreased mobility. Dr Landa indicates that both your parents are emotionally and at times physically dependent on you and became more so dependant in the last few years while you have been living with them. It is also likely that their medical conditions will affect their ability to physically see you in prison, if and once in person prison visits resume. I take these matters into account in sentencing you.
Delay
47 There has been a delay in your case, as noted in the procedural chronology. Taking into account all the circumstances, I consider that delay is a relevant consideration. I take into account the uncertainty you have experienced during this period and also your rehabilitative efforts.
48 You report complete cessation of illicit substance use throughout the past four years following the completion of the three-month rehabilitation program and ‘cutting ties’ with all your previous drug associates.
Prospects of rehabilitation
49 Your counsel submits, and I accept, that you represent a better prospect of rehabilitation now then what you did when the offending occurred. Ms Tang in her report of 2018 highly recommended a residential rehabilitation program which you have now successfully completed. As I have already noted, for a number of years you have also remained drug free and relatively stable, and you have not reoffended. You also have the continued support of your family. You are now approximately 40 years of age and, as I have already noted, you have no history of sexual offending. I take these matters into account in my assessment of your rehabilitative prospects.
50 While I accept that your prospects of rehabilitation appear better now, after an extended period of abstinence from drugs and the stability you had and the efforts that you have made, I also consider that there is a need for some caution. As submitted by Ms Foot, this is serious offending and there is an absence in your case of any remorse and insight or evidence as to what may have contributed to your offending.
51 I note in the most recent report of Ms Tse, she recommends a comprehensive psychiatric evaluation to explore the treatment and management of your ADHD and also occupational therapy which may assist you to build your daily functioning and reduce the daily impact of your cognitive weaknesses. I consider that such matters would further enhance your prospects of rehabilitation and assist with your eventual return to the community.
Sentencing principles
52 The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The community expects that the courts will unequivocally denounce and punish conduct of this kind and send a clear message that it will not be tolerated. General and specific deterrence are important considerations in your case (noting the allowance I have made for Verdins considerations). As I have already stated, community protection is also paramount.
53 I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. It is clear that the impact of your crime on Ms Page has been ongoing and significant. This and other relevant considerations must be balanced with the factors put in mitigation on your behalf.
54 The only appropriate sentence in this case is one of immediate imprisonment for a substantial period. I recognise that the deprivation of liberty and personal autonomy for a period of years during a pandemic is a severe sanction for someone who has never previously been sentenced to a term of imprisonment.
55 As earlier noted, the standard sentencing regime applies to your case and the standard sentence for rape is 10 years' imprisonment. The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.
56 In considering the impact of standard sentencing on your case I have considered the decision of Brown v The Queen.[6] In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing.[7] This requirement therefore is to be treated as a ‘legislative guidepost’ having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point, 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 I may, or must, take into account in sentencing. Accordingly, I have taken the standard sentence for rape into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors in your case.
[6] [2019] VSCA 286.
[7] See also Sentencing Act 1991, s.5B(2)(a)
57 Pursuant to s5B(2)(b) of the Sentencing Act in relation to a standard sentence offence I can only pay regard to sentences previously imposed where rape was the subject of that regime. Both parties provided the Court with cases and I have carefully considered all of them. Current sentencing practices of course promote consistency of approach in sentencing. While the cases were informative they involved different circumstances. For example, in R v Drake,[8] the offending was objectively extremely serious but the accused pleaded guilty to the charges which included aggravated burglary and 6 counts of rape. In DPP v Bek,[9] the accused had a woeful history of sexual offending against vulnerable people, but also pleaded guilty to the rape charges and had a full-scale IQ of 71. In Lockyer v R,[10] the accused was convicted after trial on two counts of rape which involved overt acts of violence but there were compelling Bugmy considerations. Each case necessarily turns on its own individual facts and circumstances.
[8] [2019] VSCA 293.
[9] [2021] VSCA 88.
[10] [2020] VSCA 321.
58 Further, as I have already indicated, while s6E moderates and limits totality, I still need to arrive at a just and appropriate sentence. While this was abhorrent and protracted offending it did occur on one evening, arising out of the one course of conduct and some of the charged acts were very closely connected in time. I must also ensure that the sentence I impose is not crushing and does not offend against the principle of totality. I propose to achieve this by adjusting the orders for total or partial cumulation or concurrency.
59 The sentence I am about to impose in respect of the individual charges of rape are lower than the standard sentence. I have considered all relevant factors in assessing your sentence, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation, and based on my intuitive synthesis of these factors I have determined that the following sentence is appropriate.
Sentence
60 Mr Radovilsky, on all the charges you are convicted and sentenced as follows:
i.Charge 2 – threat to kill – 2 years' imprisonment;
ii.Charge 3 – rape, 7 years' imprisonment;
iii.Charge 4 – rape, 7 years and 6 months' imprisonment;
iv.Charge 5 – rape, 7 years and 6 months' imprisonment;
v.Charge 6 – rape, 7 years and 6 months' imprisonment;
vi.Charge 7 – rape, 7 years and 6 months' imprisonment.
61 Charge 7 is the base sentence. The orders for cumulation are as follows: charge 3, nine months'; charge 4, one year; charge 5, one year; and, charge 6, nine months'.
62Now, if I can pause there for a moment before coming to the non-parole period, that should amount to a total effective sentence of 11 years. Is that what you get, Mr Kassimatis?
63MR KASSIMATIS: Yes, Your Honour.
64HER HONOUR: All right. Thank you.
65As the charge is a standard sentence offence, I must fix a non-parole period of at least 60 per cent of the sentence I impose unless I consider that it is in the interests of justice not to do so. In your case, considering all relevant factors that I have already referred to, I impose a non-parole period of 7 years and 6 months.
66 Pursuant to s18 of the Sentencing Act I declare that you have served 265 days as presentence detention.
Sex Offenders Registration Act 2004
67 The prosecution made an application pursuant to s11(6) of the Sex Offenders Registration Act 2004 (SORA) for an order that you be registered. The onus is on the prosecution to satisfy the court that you pose the relevant risk at the time you are released from custody beyond reasonable doubt. I note that your Counsel did not seek to advance any argument against the making of such an order. In light of the available material and the matters I have already canvassed, in particular the serious nature of this offending, I am satisfied to the requisite standard as to the existence of risk and as such I make the proposed order.[11] As agreed between the parties, the duration of the order is for life.
[11]Bowden v The Queen [2013] VSCA 382 [31], [37], [41]-[42].
68 I also cause to be entered in the records of the Court that in relation to Charges 4, 5, 6 and 7, you are to be sentenced as a serious offender.
69 Is there anything else?
70 MR KASSIMATIS: No, Your Honour.
71 HER HONOUR: No. Ms McVean, is there anything further?
72 MS McVEAN: Nothing further, Your Honour.
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