Director of Public Prosecutions v Randall (a pseudonym)
[2024] VCC 1748
•31 October 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V MATTHEW RANDALL (A PSEUDONYM)[1] |
[1] To avoid the possibility of identifying a person against whom a sexual offence has been committed, this sentence has been anonymised by the adoption of pseudonyms in place of the name of the offender and witnesses in conformity with the Judicial Proceedings Reports Act 1958, s4(1A).
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 23 October 2024 | |
DATE OF SENTENCE: | 31 October 2024 | |
CASE MAY BE CITED AS: | DPP v Randall (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1748 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Plea of guilty – rape – sexual assault – assault with intent to commit sexual offence – sexual activity in presence of child under 16 – offender and victim in a relationship at the time of offending – SORA
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:DPP v Mokhtari [2020] VSCA 161; Worboyes v R [2021] VSCA 169; Johns v R [2016] VSCA 97; DPP v Ierardo [2024] VSCA 181; Nguyen v R [2023] 210; R v Verdins & Ors [2007] VSCA 102; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307; DPP v DDJ [2009] VSCA 115; Pearce v The Queen [1998] 194 CLR 610; Bowden v R [2013] VSCA 382; Sayer v R [2018] VSCA 177.
Sentence: Total effective sentence of 16 years and 5 months imprisonment with a non-parole period of 10 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr L. McPhie | Docherty Legal |
HER HONOUR:
Introduction
1.Matthew Randall,[2] over a six-year period, starting when you were 18 years old, you repeatedly raped your long-term intimate partner and mother of your two children, Angelica Kaiser.[3] What you did was cruel and abusive in the extreme. It was also incredibly destructive. It has had long-term consequences for Angelica and probably ruined your chances of ever having a normal relationship with your children.
[2] A pseudonym.
[3] A pseudonym.
2.The police investigation started after the last incident, which was also the worst, when Angelica decided to make a formal statement against you. You were arrested, interviewed and charged on 20 October 2023. You were bailed on that day but following your remand on other matters your bail was revoked on 21 March 2024 with the consequence that you have now spent 224 days in custody.
3.The matter resolved in June 2024, prior to a committal mention, and on 23 September 2024, you pleaded guilty before me to eight charges of rape, one charge of sexual assault, one charge of assault with intent to commit a sexual offence and one charge of sexual activity in the presence of a child under the age of 16.
4.A plea on your behalf was conducted before me on that same day and it now falls to me to sentence you for your conduct. Your counsel, Mr McPhie conceded that nothing other than a term of imprisonment involving a head sentence and non-parole period could be imposed.
5.In determining any sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks. Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
Circumstances of the offending
6.First, I need to return to the circumstances of your offending in more detail.
7.The agreed facts upon which I sentence you are set out in a lengthy Summary of Prosecution Opening.[4]
[4]Exhibit A on the plea.
8.More briefly, you and Angelica first met at school in 2013 when you were both 15. You began a sexual relationship just after Angelica's 16th birthday and your first child, Ethan,[5] was born when you were both 17, by which time you had moved in with Angelica and her mother in Wangaratta.
[5] A pseudonym.
9.After Ethan's birth your relationship with Angelica deteriorated somewhat due to financial concerns, the demands of looking after Ethan and the fact you wanted more sexual intimacy. When Ethan was about four months old you stared to pressure Angelica for sex. You even suggested having sex with her when she was asleep, leading her to respond jokingly 'Yea that's a great idea'. After that conversation Angelica started to suspect that you were in fact having sex with her when she was asleep due to the state of her underwear. She eventually confronted you, whereupon you admitted you had been doing that, but said you believed she had given you permission in that conversation.
10.Angelica then made her position perfectly clear. She told you that what you had been doing was wrong and she did not want you to do it again. You apologised and confirmed you would not.
11.At that stage you and Angelica separated although she continued to visit you with Ethan. Because you had started drinking and smoking marijuana, she was loath to leave Ethan alone with you.
12.In January 2016, Angelica and Ethan moved to live with her father in Dandenong. Soon after it was agreed that you could move in as well as long as you did not consume illicit drugs or alcohol. You then moved into one of the spare bedrooms. After a while you and Angelica resumed your relationship and slept in the same bed, but once again you started pressuring her for sex and your relationship became volatile. Sometimes she had sex just to appease you and sometimes she would tell you that she did not want sex before going to sleep. She again became suspicious that you were having sex with her when she was asleep and began staying awake at night.
13.On two occasions in around June 2016 Angelica actually woke to you penetrating her vagina with your penis. These two occasions comprise Charges 1 and 2 of rape. The first time she pretended to remain asleep, but the second time she asked you what you were doing and the two of you argued. You told her that you had been having sex with her whenever she fell asleep and that you liked doing that as it made you feel 'in control' because she could not say 'no' or use their previously agreed 'safe word'.
14.Soon after these incidents Angelica discovered she was pregnant which caused her some angst given how it happened.
15.In January 2017, you, Angelica, and Ethan moved into Angelica's mother's house which was also in Dandenong.
16.In February 2017, your second child Candice[6] was born prematurely and spent four weeks in hospital.
[6] A pseudonym.
17.In April 2017, you, Angelica, Ethan and Candice moved to a rental address in Kyabram. You worked whilst Angelica cared for the children at home. Finances were tight. You continued to pressure Angelica for sex and sometimes she acquiesced to keep the peace. She slept poorly out of fear you would penetrate her in her sleep.
18.At Christmas time 2018, the four of you were staying with your mother in Wangaratta. You and Angelica were sleeping on a blow-up mattress in the lounge-room and your grandmother was in the next room. One morning you initiated sex with Angelica but she said 'No' because of your grandmother. You said your grandmother would not realise what you were doing but Angelica was adamant that you stop and rolled onto her side with her back to you. Instead of touching her bare breasts under her pyjama top. She tried to shrug you off, but you pulled her into a cuddle and put your hands down the front of her pyjama pants saying, 'just be quiet and it'll be okay'. She froze and you pulled down her pants and penetrated her vagina first with your fingers and then with your penis. These two penetrations constitute Charge 3 of rape. While you were doing this Angelica was crying and shaking and trying to push you away, but you kept pulling her closer whispering 'shush' into her ear. When you inserted your penis she winced in pain and you said, 'I know, I'll be quick'. At that point she stopped resisting and just lay there waiting for you to finish, which you did when you ejaculated.
19.In March 2019 Angelica broke up with you and moved to Melbourne with the children while you stayed at Kyabram. You still saw Ethan and Candice every second weekend, however your relationship with Angelica was bad. There were frequent arguments, and you were verbally aggressive when Angelica refused to have sex with you.
20.In early January 2020 Angelica and the children were visiting you in Kyabram. After the children had gone to sleep, you and Angelica were in the loungeroom when you started kissing her on her neck and initiating sex. At that time Angelica said 'No' and left the room. Later, when Angelica returned to say good night, you asked for a good night kiss and as she leant over to give you one, you grabbed her arm and pulled her down onto the couch. You then got on top of her and forcefully kissed her on the mouth. She managed to push you off onto the floor, but as she stood up to leave, you grabbed her ankle and pulled her onto the floor beside you. She asked what you were doing and the two of you argued. She stood up to leave again, but you grabbed the front of her T-shirt, holding her in place. She started yelling at you and tried to wriggle out of her T-shirt, but you wrapped it around her head and arms, restraining her. You then stood behind her and pushed her face down onto the couch so that she could not move. She continued to yell, but you were undeterred. You pulled her shorts and underwear down to her knees and then inserted your penis into her vagina causing her pain. After a while Angelica stopped resisting so it would not hurt as much. You continued penetrating her until you ejaculated inside her, at which point you patted her on the back and walked away as if nothing had happened. Angelica locked herself into the bedroom that night whilst you slept on the couch. This incident is Charge 4 of rape.
21.On the night of 11 January 2020, you and Angelica spoke about custody arrangements, given recent events. You ended up arguing and Angelica told you she was going to bed, and you were not allowed to sleep with her. You agreed to sleep on the couch, however you followed her into the bedroom and continued arguing. She told you that you were not the person she first met and that she no longer wanted to see you and to leave her alone and go back to the couch.
22.You did leave, but only for a short time. After smoking some Cannabis, you returned to find Angelica packing her belongings so she could leave first thing in the morning. You pushed her onto the bed and lay on top of her, facing her. She tried to push you off with her hands and feet but could not move you. You told her to ‘get over it’, ‘we’re done’ and ‘you’re leaving anyway’. You then forcefully removed her shorts and underwear and used your legs to pin her legs to the bed so that she could not move. You then forcefully penetrated her vagina, first with your finger, becoming more forceful the more she tried to get you off her, and then with your penis. At some point Angelica stopped resisting to lessen the pain. You continued penetrating her vagina until you ejaculated inside her. Your acts of digital and penile penetration comprise Charge 5 of rape. When she went to the toilet immediately after this, she noticed that her vagina was bleeding.
23.The next morning, 12 January 2020, Angelica left with the children. She felt unwell and had stomach cramps. You called her to ask if she was okay and she told you that she was not and, in fact, was bleeding. In the afternoon, back in Melbourne, her mother noticed she appeared unwell. The next day she almost fainted at work and was sent home. She was concerned that her Intrauterine Device had been dislodged and saw a GP who referred her to the Dandenong Hospital. She disclosed your rape of the night before to both the GP and hospital staff. Whilst at the hospital she received a Facebook message from you expressing your concern that you had hurt her.
24.On 14 January 2020, Angelica was transferred to the Monash Medical Centre. You messaged her again on Facebook asking if she was still at the hospital and whether you might have dislodged the IUD. At police request Angelica was examined by a forensic medical officer. The examination revealed an abrasion to the top of the vaginal vestibule at the entrance to the vaginal canal, below the clitoris, which the doctor considered had been caused by a combination of blunt trauma and tangential force to the area.
25.On 15 January 2020, Police applied for a Family Violence Intervention Order and on 10 March 2020 the Echuca Magistrates' Court made a final Family Violence Intervention Order prohibiting you from contacting Angelica except in relation to childcare arrangements for a period of 12 months. Because she had the protection of this order Angelica decided not to pursue criminal charges and during the period of the order your behaviour improved.
26.From April 2021, you spent more time with Angelica and your children at either Kyabram or Melbourne.
27.In September 2021, you moved to another property in Kyabram, which was a house your mother had bought. Angelica and the children would spend their time between that address and Melbourne.
28.On 18 October 2021 you admitted having raped Angelica in a Facebook messenger conversation with her.
29.On 20 October 2021 Angelica, your children and some friends were all at your home in Kyabram. You were drinking alcohol. You became annoyed that Angelica kept resisting your sexual advances and punched her in the stomach. Someone told you to go to bed in Candice’s bedroom, which you did.
30.A couple of hours later, Angelica checked on you and you asked for a hug, insisting that is all it would be. Despite her reluctance, she agreed and lay down beside you and you put your arm around her stomach. After a while, thinking you were asleep Angelica started to scroll on her mobile phone. You grabbed her phone, put it under your pillow and asked for sex, saying you would give her phone back if she had sex with you. Angelica refused, told you that you could keep her phone and attempted to leave the bed. You grabbed the hood of her jumper and pulled her onto her back on the bed. You then straddled her legs facing her and rubbed her thighs sexually. This conduct is Charge 6 – Sexual assault.
31.Angelica tried to push you away with her hands on your chest. You asked if she wanted her phone back and she again told you to keep it, she just wanted to leave. You told her she could not leave until you got what you wanted. She managed to push you off, but you grabbed her arms and forced her back onto the bed saying ‘It’s going to happen anyway. So, you’d better stop fighting’. Angelica yelled at you to stop, and kept on struggling. Even so you were able to remove all her clothing. At one point, whilst she was naked with her back shoved against the wall you tried to grab her ankles, but she managed to put her feet on your chest and push you off the bed. She immediately put on her jumper and left the bedroom, but you still would not let her go. Completely naked, you chased after her, grabbed her in a bear hug and dragged her struggling and yelling back into the bedroom where you threw her onto the bed and fell on top of her, pinning her down. She was kicking and trying to pull your hair and at one stage punched your cheek. When she did that, you laughed at her, saying she was ‘weak’ and that it was fun for you. You then knelt on the bed and tried to put her legs onto your shoulder, but Angelica got one leg free and kicked you in the jaw causing you to fall sideways and hit your head on the wall. You then grabbed her legs and tried to spread them apart, at which time one of your friends, Ben,[7] who had heard Angelica saying ‘stop’ and ‘please stop' entered the bedroom and saw what was happening. Angelica then escaped, and Ben returned her phone to her.
[7] A pseudonym.
32.This continued assault comprises Charge 7 – Assault with intent to commit sexual offence - which is a rolled up charge. To be clear, you were naked, and Angelica was naked and/or not wearing underwear during this assault.
33.Later that night you and Angelica had some Facebook messenger conversations about what had just happened, and you even asked for further cuddles, which was rejected.
34.After this night, Angelica would stay at her grandmother’s house when the children visited you in Kyabram until that became too tiring for her. It was then agreed that she and the children would stay at your house, whilst you would either stay at your friend Ben’s house, or in a separate bedroom.
35.This is the context in which your final assault occurred on 21 January 2022. Angelica was staying the night at your place with the children, and you were at Ben’s house as agreed. However, during the night you became intoxicated and wanted to return home. Ben was concerned you would assault Angelica and tried, but failed, to get you to stay.
36.Just before 10 pm you drove home. Angelica heard you arrive and went outside. She told you off for driving drunk and then attempted to go back inside, but you grabbed her in a bear hug and started kissing her neck and trying to put your hands down the front of her shorts. She told you to ‘get off’ and ‘stop’. In reference to a conversation you had had earlier that day, you called her a ‘lesbian’ and told her you could give her advice on how to sexually arouse females. She told you to ‘go away’.
37.You then put your hand on her upper thigh and slid your hand up her shorts, touching her vagina over her underwear. She moved away and told you to go to bed. You went inside and asked for a good night kiss. When she refused, you grabbed her by the neck and forcefully kissed her on the lips. She pulled away and again told you to go to bed.
38.Instead, you grabbed Angelica from behind, pushed up against her and then dragged her into the bedroom where the children were sleeping. Angelica was resisting all the way and at one point you both fell. She even grabbed the doorway to stop you from pulling her into the bedroom, but she was not strong enough. Once inside you both sat on top of a makeshift bed comprising a mattress on top of a couch. You kept trying to kiss her and push her down. She kept pushing you away and saying she ‘didn’t want to do this’ and to stop. You pulled the top part of her clothing off to expose her breasts and threatened to cut off the rest as she held onto it. You leant down and started ‘chewing’ on her left breast, causing her pain. You got on top of her and put your hips between her legs and started thrusting into her. At this point Angelica’s hair got stuck in the couch and when she reached up to free it, you pulled off the rest of her clothing and immediately forced your penis into her vagina. Although she was in pain Angelica tried to keep quiet so as not to wake the children. However, she heard Ethan say ‘mum’ and looked over to see him sitting up on the bed whilst you were penetrating her. She told you that Ethan was awake, and you withdrew allowing Angelica to untangle her hair from the couch and escape. This penetration comprises Charge 8 of rape.
39.After Angelica settled Ethan, you grabbed her by the wrists and told her ‘we’re not done yet’ and then squeezed her neck so hard that she lost consciousness. You then threw her onto the mattress, got on top of her and tried to force your penis into her vagina. She fought against you until once again she heard Ethan speak. She told you to stop, that Ethan was awake, and grabbed at your face. You did then get off Angelica, but it was only a temporary reprieve. You shut the bedroom door, causing the room to go completely dark and then got back on top of Angelica. You wrapped your arms around her from behind and bent her torso forward towards the mattress so that her face was pushed into the pillow and her arms were pinned under her chest. You then stood behind her, forcibly spread her legs apart and then inserted your penis into her vagina penetrating her until she managed to move her hips in a way that caused you to fall. She then squeezed her legs together. This penetration comprises Charge 9 of rape.
40.Whilst Angelica was still face down on the mattress you moved your legs outside of hers, ran your hands over her body, and then inserted an unknown number of fingers into her anus causing her immense pain. You then pulled her by the hair and necklace towards you and tried, unsuccessfully, to penetrate her anus with your penis whilst she was writhing around in pain. You then rubbed lubricant between her thighs, pushed her hips up and rammed your penis into her anus. Angelica was in so much pain she could not help screaming out which woke Ethan again. He yelled out ‘Mum’. Angelica tried to be quiet, but you kept penetrating her anus and pulling her hair and necklace. The necklace was choking her, and she was in so much pain she could not help crying and sobbing loudly which caused Ethan to keep calling out to her. Even then you did not stop. Instead, you repeatedly told Ethan to ‘shut the fuck up’ and ‘go back to sleep’ whilst you continued to penetrate Angelica’s anus until you ejaculated and left the room. Your penetration of Angelica's anus with your fingers and then your penis together comprise Charge 10 of rape. Your continued anal penetration when Ethan was awake comprises Charge 11 – Sexual activity in the presence of a child under the age of 16.
41.Angelica did not want Ethan to see her crying, so she left the room and sat outside shaking. You sat beside her and asked how much she hated you and tried to goad her into hurting you. She told you she did not want to hurt you and just wanted to be left alone. Ethan came outside and asked why she was crying, so she put him back to bed and then went to bed with her children.
42.The next morning, 22 January 2022, Angelica drove to her mother’s house in Dandenong with the children. After telling her mother what had happened, she attended the Emergency Department at Monash Hospital, Clayton and told the medical staff. Once again police were notified and at their request Angelica was examined by a forensic medical officer on 23 January. The doctor observed multiple petechiae on Angelica’s left breast with the features of a suction injury.
43.On 22 March 2022, Angelica finalised a statement in relation to your offending and provided screenshots of relevant social media conversations between the two of you. On 5 April 2023, she recorded a pretext call with you in which you made admissions.
Your personal circumstances
44.Turning now to your personal circumstances. These were outlined in defence submissions, a Psychological Report of Jeffrey Cummins, who assessed you via video conference on 30 August 2024, and a reference from your mother.
45.You are now 27 years old. You grew up with your parents and an older sister in various locations along the east coast of Australia. Your father was a heavy cannabis user, and you were exposed to his drug use from an early age. You told Mr Cummins that your father was ex-military and probably suffered from Post-Traumatic Stress Disorder (PTSD). You also said your mother was always studying so you regarded yourself as being neglected.
46.Your parents separated when you were 18 years old. Your father moved to the Philippines and remarried, and you have had no contact with him since being charged. Your mother also remarried and now resides in Berwick and works as a midwife. You have a close relationship with your mother and stepfather who remain supportive of you despite the charges. Indeed, they were both in court at your plea hearing and as I have mentioned your mother provided a character reference.
47.At around the age of four or five you were diagnosed with Asperger’s Syndrome and Attention-deficit/hyperactivity disorder. You began school in the mainstream system where your mother says you were bullied as a result of your 'lack of social skills and etiquette'. In Year 9 you were enrolled at a Special School and stayed there until you completed Year 12 VCAL. Since leaving school you have worked intermittently in the demolition industry and most recently, in 2023, were managing a crew at a refinery plant in Moama.
48.It was at the Special School that you met Angelica when you were 15 years old. Your children Ethan and Candice are now aged nine and seven. There is an intervention order against you and you do not see or speak to either of them. You acknowledge that you may not be permitted to have contact with them for several years.
49.You told Mr Cummins that you were sexually abused by an ex-partner in 2023 but when you reported it to police, they declined to take a statement from you. You claimed to have 'definitely been traumatised by these events'.
50.You take paracetamol and anti-inflammatory medication and have started seeing a physiotherapist for chronic back pain from an injury sustained when you fell off a horse at age 15.
51.You smoked cannabis for a few months when you were 18 years old and resumed smoking it when you were 20. You used it daily until you were prescribed cannabis oil and cannabis flower at around the end of 2023, which you say helped with your sleep, anxiety and back pain. You have previously experimented with methamphetamine but say you have never been dependent on it.
52.You started drinking alcohol at age 15 and had a drinking problem by age 20, typically consuming 12-18 cans of beer daily. During one of your separations from Angelica you contacted Alcoholics Anonymous and remained sober for six months. You admit you have a problem with alcohol and need help dealing with it.
53.You are currently medicated for depression and anxiety and have been on some form of antidepressant since you were about 16. You told Mr Cummins that you have tried to take your own life four or five times but were never hospitalised and the attempts were really cries for help. You have had very limited mental health treatment, only ever seeing 'a couple of counsellors here and there'.
54.Mr Cummins considered that you probably had a moderately severe recurrent depressive disorder during your relationship with Angelica, partly exacerbated by your alcohol and cannabis use. He diagnosed you with an Alcohol Use Disorder and a Cannabis Use Disorder, both of at least moderate severity. He also diagnosed you with a Sexual Sadism Disorder.
55.You are resigned to spending a significant time in custody. Whilst on remand you have worked as a floor cleaner and food handler, have competed several courses including a food handling and Occupational Health and Safety course. You receive regular visits from your girlfriend, whom you have been seeing since the beginning of the year and to whom you are engaged, as well as your mother and stepfather.
Objective Gravity of your offending and moral culpability
56.Critical to determining any sentence are the objective gravity of the offending and the moral culpability of the offender.
57.Rape is an inherently serious offence. It is a deeply personal crime which at the very least involves the violation of a person's body and right to sexual and physical autonomy. The seriousness with which Parliament regards the crime is unambiguously reflected in its maximum penalty of 25 years' imprisonment and the fact that it is a category 1 offence meaning it must be punished by a custodial sentence not in combination with a corrections order.[8] Further, since 1 February 2018, rape has been a standard sentence offence under the Sentencing Act with the standard sentence for an offence of mid-range objective seriousness set at 10 years and a presumed minimum non-parole period of the total sentence of 60 per cent.[9]
[8]Rape is a Category 1 offence as defined in section 3(1)(d) of the Sentencing Act 1991, which pursuant to 5(2G) of that Act must be punished by a custodial order not in combination with a community corrections order.
[9]Sections 5A and 11A of the Sentencing Act 1991 (Vic). The percentage increases if the total effective sentence is more than 20 years. The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors. Rather, I take into account the standard sentence and the default non‑parole period in the same way as I do the maximum penalty, and indeed all other relevant sentencing factors to arrive at an appropriate sentence by a process known as instinctive synthesis. See Brown v the Queen [2019] VSCA 216
58.Parliament aside, our Court of Appeal has also often and repeatedly affirmed the seriousness of the offence. In 2020 in a case called Mokhtari it said:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.' [10]
[10]DPP v Mokhtari [2020] VSCA 161 at [41].
59.Although not as intrinsically serious, your other offences of sexual assault, assault with intent to commit a sexual act and sexual activity in the presence of a child are also all serious crimes as is reflected by their maximum penalties of 10 years, 15 years and 10 years respectively.
60.Moreover, all your offences, except Charges 1 and 2 were serious examples of serious offences. That is not to say Charges 1 and 2 were not serious, rather it is to rank them in the scale of seriousness for the offence of rape. It was certainly a significant breach of trust to rape your partner when she was asleep, and more so when she had specifically asked you not to do so, but at least, it must be said, you were not violent. Further, they were the first in time of all your offences and you were only 18.
61.All your other charges involved violence, to varying degrees, and some of them comprised multiple discrete offences, rendering them inherently more serious. Your conduct was not only repeated, it escalated over the six years of your offending. Not only did you have ample time to reflect on your behaviour over those six years, you actually did reflect on your behaviour, recognised that it was wrong and then did it again anyway. You knew how drinking and taking drugs would affect you, but you chose them over being a decent human being, a decent partner and a decent father. You prioritised your desire for sexual gratification and your desire for power and control over the welfare and rights of your family. It is truly hard to fathom how you could be so callous, especially on the last occasion.
62.When you were interviewed by police you said that you had a fetish for having sex with people when they were asleep. You agreed that Angelica could not consent if she was asleep. You admitted that you had raped Angelica on occasions and in relation to one specific incident said you enjoyed taking control away from her after she said ‘no’.
63.You told Mr Cummins that on most of the occasions you offended against Angelica you would have been under the influence of alcohol and/or cannabis. You said, 'the combination of alcohol and dope turned [you] into a different person' and that at those times your 'self-control goes out the window' and you ‘had an overriding urge to reoffend against Angelica.' You explained that when you were under the influence of alcohol or both alcohol and cannabis your sexual arousal increased, and you had a specific desire to have sexual intercourse with Angelica when she was asleep. You again described it as a fetish. You also explained that you often felt powerless in your relationship with Angelica because she made all the decisions, although you acknowledged this was no excuse for what you did.
64.There is really nothing in your personal circumstances or psychology to reduce your moral culpability and I regard it as very high. That said, I do take into account the fact you were a young man and relatively immature at the time of Charges 1 and 2. Although those charges could hardly be considered impulsive, especially given Charge 2 was a repeat of Charge 1, the law recognises that young people are more prone to make ill-considered or rash decisions and may have less insight and self-control than an older person. Further, they may not fully appreciate the seriousness or consequences of their conduct, and I am prepared to accept that that was the case for you.
65.By the time of Charge 3 however, there can be no doubt that you were fully aware of just how wrong your behaviour was, not only because you were older but also because of the circumstances of each offence. From Charge 3 onwards they were forceful assaults and Angelica’s distress was perfectly obvious to you. At best you were completely indifferent to her suffering. At worst you enjoyed it. Certainly, the latter seems consistent with your diagnosis of sexual sadism disorder. On the last occasion you were also indifferent to the welfare of your own child.
Impact of your offending[11]
[11]I am required to take into account the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).
66.Angelica’s Victim Impact Statement was read out at the plea.
67.Your offending has had a profound and long-lasting effect on her. She describes feelings of shame, betrayal and grief. She has become anxious and has trouble sleeping. She has become socially isolated and has withdrawn from work, studies and hobbies as well as friendships, romantic relationships and the support of her family because she does not want to burden others with her troubles. She also fears that mutual friends will pass on information to you. She has at times been afraid to leave the house for fear that she would suffer flashbacks or encounter you.
68.Your offending has also impacted your children particularly Ethan who has frequent nightmares about what he saw you do to his mother and displays behavioural difficulties such as lashing out.
69.Angelica feels very guilty about severing the relationship between you and your children, especially because she cannot explain why it has happened to her children. She worries about them eventually finding out.
70.In short, Angelica has lost the joy in life.
Current Sentencing Practices
71.I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. The reason is to promote consistency of approach in sentencing.
72.In the case of offences subject to the standard sentencing regime such as most of your rapes, I am limited to a consideration of other sentences imposed under that regime, that is, sentences imposed for offences committed after 1 February 2018.[12]
[12]Sentencing Act 1991 (Vic) s 5B(2)(b).
73.I have had regard to the most recent Sentencing Advisory Council Statistics of the higher courts (30 June 2023) for all your offences. They indicate that of the 189 charges of rape dealt with as a standard sentence 94.7 per cent received a term of imprisonment ranging from 1.67 to 15 years, with six to seven years being the most common sentence at just over 20 per cent. Over 80 per cent of charges of sexual assault resulted in a sentence of imprisonment with the most common term being less than one year. Over 85 per cent of the only 47 charges of sexual activity in the presence of a child under 16 resulted in a term of imprisonment, most commonly less than two years.
74.Of course, statistics are of limited assistance because they never tell you anything about the details of the case. That said, the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved. It is also likely that some of the sentences may have been reduced because of the combined effect of the Worboyes’ principle and the increased burden of imprisonment during COVID.[13]
[13]Worboyes v The Queen [2021] VSCA 169.
75.Of more use than statistics are sentences imposed in comparable cases. Mr McPhie referred me to a single Court of Appeal intimate partner rape case of Johns.[14] It involved multiple charges of rape over a 10 year period and a sentence of 13 years was reduced on appeal to just over 11 years, however it was pre standard sentence.
[14]Johns v The Queen [2016] VSCA 97.
76.I have also referred the parties to a more recent case of Ierardo,[15] which was a standard sentence case and involved four separate incidents over a seven-month period in which a Crown sentence appeal was allowed and the sentences imposed on individual rape charges were increased from three to six years. Whilst the rapes in Ierardo bear some similarity to yours, in that they involved the use of physical force, there are also obvious differences between that case and yours, not the least of which is the fact that there were many more charges laid for each incident in Ierardo. Specifically, different types of penetration were charged as separate rapes rather than being rolled up into a single charge and acts of force and restraint were charged separately from the rapes.
[15]DPP v Ierardo [2024] VSCA 181.
77.In any event there is no single correct sentence and sentences imposed in other cases are not binding precedents to be applied or distinguished. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of Guilty, co-operation and remorse
78.You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing you facilitated the course of justice and took legal responsibility for your crimes. You have also spared Angelica and other witnesses the ordeal of coming to court to give evidence. Whilst it is true that there was support for Angelica's allegations in the form of admissions made by you at various times, some contemporaneous complaint evidence and injuries observed on Angelica, many offenders contest these sorts of matters even in the face of such evidence.
79.Additionally, Mr McPhie submitted that your plea was accompanied by significant remorse. After the plea hearing, at my request, Mr McPhie indicated what evidence he was relying on for that proposition, namely certain passages in the pretext call and Question and Answers 581 to 583 of your record of interview where you indicate your annoyance at the questions and when asked how Angelica felt at Question 583 said, 'Worse, I'm guessing'.
80.I have reviewed the record of interview and pretext call in their entirety. In my view they do you no credit in that regard. Whilst you do make admissions, there is also a general minimisation of your conduct and some victim blaming, for example by attributing a false motive to Angelica. At no stage do you appear to be genuinely sorry for what you did. Likewise with Mr Cummins, although you acknowledged that you needed treatment and deserved to be punished, there is no obvious remorse. Indeed, he found that you 'displayed relatively limited insight into the psychological consequences of [your] offending for Ms Kaiser'. Only your mother says in her reference that she believes you are sorry, but she does not say on what basis.
81.In the circumstances I am only able to find that you have limited remorse. I accept that you regret what you did and that you want to change, but I am far from satisfied that you truly understand the harm that you have caused Angelica and your children.
Your character and risk of reoffending
82.You have a reasonable employment history, and you have the support of your mother and stepfather. These matters bode well for your future.
83.You also have no prior convictions, although you do have some subsequent matters which concerningly involve breaches of intervention orders in favour of Angelica. They were dealt with in the Magistrates' Court by way of an adjourned undertaking which I accept reflects their objective seriousness.
84.According to the defence submissions, you have been prioritising your health and wellbeing in custody and ultimately want to 'become a contributing member of society, to find a job and [your] own accommodation, and hopefully to be part of [your] children's life and earn their trust again'.
85.You are a young man and will still be relatively young upon your release from prison. This means both that there is plenty of opportunity for you to change and lead a responsible prosocial life, but also, since you are likely to have other relationships, plenty of opportunity to offend again. You acknowledged to Mr Cummins your own concern that if you resume drinking you might sexually offend again. As well as diagnosing you with Sexual Sadism disorder, Mr Cummins described your offending as indicative of sexual entitlement and said that it was imperative you receive offence specific treatment. He assessed your current level of risk for committing a sexual offence as moderate-high.
86.Your prospects of rehabilitation are undoubtedly tied to your ability to abstain from drug and alcohol use, but it is not just your drug and alcohol use that has to change, it is your attitude. It is good you are willing to engage in offence specific treatment, but given the sustained nature of your offending against Angelica I have my doubts as to whether it will make a difference.
87.All up I consider your prospects of rehabilitation to be fair at best.
Delay
88.Mr McPhie noted that had you been dealt with before you were 21 there would have been the opportunity of a Youth Justice Centre order. As only Charges 1 and 2 occurred before you were 21 and you kept offending after them, and in a more serious way, there is little I can make of this submission.
The burden of imprisonment
89.In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. As to that Mr Cummins said: 'It would be more onerous for him to spend time in custody given he reported missing having contact with his two children' and 'I would expect his symptoms of depression will be exacerbated the longer the time he spends in custody, because he regards having contact with his children as being important for the maintenance of his mental health.'
90.I accept you will miss your children in prison, but that is not an uncommon scenario, and, in any event, it is not only prison that is preventing you from seeing them. Further, Mr Cummins' opinion falls far short of what is required to enliven limb 6 of the case of Verdins which is not only that the risk of deterioration be serious but also that the decline be significant.[16]
[16]Nguyen v The King [2023] 210 at [16]; R v Verdins & Ors [2007] VSCA 102
Purposes of Sentencing
91.I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. If a custodial sentence is imposed it must be the absolute minimum required.
92.Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality.
93.In your case those general sentencing principles are qualified by some specific sentencing provisions applicable to rape which I have already mentioned. Moreover, because I am imposing a term of imprisonment on Charges 1 and 2, once I come to sentence you on Charge 3, you will be a serious sexual offender. That means in respect of the sentences on Charge 3 onward I am required to consider protection of the community as the principal sentencing purpose and am entitled to impose a disproportionate sentence to achieve that purpose. Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation of individual sentences. The more serious the overall offending the more that presumption operates to moderate the principle of totality.[17]
[17]DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91].
94.Even without those provisions your offending clearly warrants a substantial term of imprisonment. The prosecution has not submitted that a disproportionate sentence is necessary, and I am satisfied even having regard to the fact I consider that you are a risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without imposing one.[18]
[18]DPP v DDJ [2009] VSCA 115 at [29].
95.Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence, especially given a number of the charges occur on the same occasion and Charges 10 and 11 substantially overlap.[19] Indeed, I consider substantial concurrency of sentences is necessary to avoid a crushing and wholly disproportionate sentence and 'otherwise direct' to give effect to my orders.
[19]Pearce v The Queen [1998] 194 CLR 610
96.In fixing the individual sentences for the rapes I have taken into account the context in which they occurred whilst being careful not to sentence you for crimes with which you have not been charged.[20]
[20]In accordance with the discussion in DPP v Ierardo [2024] VSCA 181 at [115] ff.
97.Where I have imposed a sentence less than the standard sentence it is because I consider it warranted in all the circumstances, having regard to your plea of guilty and the principle of totality.
98.The courts have repeatedly emphasised that general deterrence and denunciation are paramount sentencing considerations in sentencing for sexual offences and in sentencing for crimes of family violence. Your crimes fall into both categories. In your case there is also clearly a need to specifically deter you and to protect the community.
99.Of course, my sentence must also be just. It must reflect your mitigating factors and as far as possible promote your rehabilitation by the fixing of non-parole period.
Prison
100.Weighing up the competing considerations as best I can you are convicted on each charge and sentenced to terms of imprisonment as follows.
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Rape | 25 years | 3 years | 6 months |
| 2 | Rape | 25 years | 3 years | 6 months |
| 3 | Rape (Rolled-up charge) | 25 years (Standard sentence 10 years) | 7 years | 1 year |
| 4 | Rape | 25 years (Standard sentence 10 years) | 7 years | 1 year |
| 5 | Rape (Rolled-up charge) | 25 years (Standard sentence 10 years) | 8 years | 1 year |
| 6 | Sexual assault | 10 years | 1 year | 2 months |
| 7 | Assault with intent to commit a sexual offence (Rolled-up charge) | 15 years | 6 years | 1 year |
| 8 | Rape | 25 years (Standard sentence 10 years) | 9 years | 6 months |
| 9 | Rape | 25 years (Standard sentence 10 years) | 9 years | 6 months |
| 10 | Rape (Rolled-up charge) | 25 years (Standard sentence 10 years) | 10 years | Base |
| 11 | Sexual activity in the presence of a child under the aqe of 16 | 10 years (Standard sentence 4 years) | 3 years | 3 months |
Total Effective Sentence: | 16 years and 5 months | |||
Non-Parole Period: | 10 years and 6 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 224 days | |||
| 6AAA Statement: 20 years’ imprisonment with a non-parole period of 15 years’ imprisonment. | ||||
| Other relevant orders: I declare the fact you are a Serious Sex Offender in respect of charges 3 to 11 be entered into the records of the court. SORA – lifetime reporting | ||||
101.I declare that the fact you are a Serious Sex Offender on charges 3 to 11 be entered in the records of the court.
Presentence Detention
102.I declare that you have already served 224 days in respect of that sentence, not including today, and direct that that figure is entered into the records of the court.
Section 6AAA
103.I also declare that if you had not pleaded guilty to the offences and been found guilty by a jury, I would have sentenced you to a total effective sentence of 20 years' imprisonment with a non-parole period of 15 years.
Sex Offenders Registration
104.The fact you have pleaded guilty to a Class 2 offence within the meaning of the Sex Offenders Registration Act 2004 being sexual activity in the presence of a child means you are automatically required to comply with the reporting obligations under that Act for a period of eight years.
105.The prosecution has, however, applied for an order that you be a registered sex offender for life on the basis of your several convictions on the rape charges. Under the Act I can only make such an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons, or the community. I have had regard to the two cases to which I was referred, Bowden[21] and Sayer[22]. I shall not repeat the applicable principles in full.
[21] Bowden v R [2013] VSCA 382.
[22] Sayer v R [2018] VSCA 177.
106.It is a two-stage test. Having regard to the sustained and serious nature of your offending against Angelica, your expressed reasons for offending, the assessment of Mr Cummins and your age upon release from prison, I am satisfied beyond reasonable doubt that you will, when you are released, pose a risk to the sexual safety of other persons, being those persons with whom you might form a relationship and their children, and that the risk is real, not merely fanciful.
107.In relation to the balancing exercise, which is the second stage of the test, it is difficult to estimate the magnitude of the risk upon your release, given you will be older and will likely have received treatment, but I am satisfied that the harm if the risk were to materialize would be grave, that being a rape of a domestic partner and the exposure of children to sexual assault and/or domestic violence at worst, or sexual activity at best. As against that, the requirement that you report for life is a significant imposition, especially given the likelihood that you will form relationships with women who have children. I do not consider there to be much of an imposition on your capacity to work given the type of work you are likely to engage in.
108.In the end having regard to the express purposes of the Sex Offenders Registration Act I am satisfied that I should exercise my discretion to make the order sought by the prosecution. Accordingly, I direct pursuant to s11 of the Act that you are to be a registered sex offender for the remainder of your life.
109.The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations. The court will arrange for that notice to be sent to you in prison. Now, are there any matters that either counsel wish to raise?
110.MR CORDY: No, Your Honour.
111.HER HONOUR: Mr McPhie?
112.MR McPHIE: No, nothing, Your Honour, thank you.
113.HER HONOUR: All right, adjourn the court please.
114.MR McPHIE: The court pleases.
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