Director of Public Prosecutions v Reeve
[2023] VCC 1676
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEATH REEVE |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2023, 12 July 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v Reeve | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1676 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Rape – assault with intent to commit sexual offence trial – guilty verdicts –– victim Japanese national – cultural and language barriers resulting in additional vulnerability – alcohol use disorder – lengthy criminal history – no condom used - history of violence against female partner – Standard Sentence - serious offending – high moral culpability – limited remorse – guarded prospects of rehabilitation – delay.
Legislation Cited: Sentencing Act 1991.
Cases Cited:Mush v The Queen [2019] VSCA 307; DPP v Mokhtari [2020] VSCA 161; Mason v The Queen [2001] VSCA 62; Stafford v The Queen [2022] VSCA 229; DPP v Todd [2019] VSC 585; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Zhao v The Queen [2018] VSCA 267
Sentence: 8 years 10 months imprisonment with a non-parole period of 6 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett (For Plea) | Office of Public Prosecutions |
| Ms L. Watson | ||
| (For Sentence) | ||
| For the Accused | Mr C. Pearson | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Heath Scott Reeve, on 25 November 2022 a jury found you guilty of one charge of assault with intent to commit a sexual offence and three charges of rape. The offences were all committed against a single victim, whom I shall refer to as DC, and all occurred on 9 December 2019 at a caravan park in Wangaratta.
Circumstances of Offending
2DC was a 24 year-old-Japanese national who came to Australia in April 2019 on a working holiday visa. Upon arrival in Australia she obtained work at a Japanese restaurant in the Melbourne CBD and also undertook English classes. While in Melbourne, DC met HJ, who was to become her boyfriend.
3With HJ's assistance, DC applied for a job at a tea factory situated in Wangaratta. DC was successful in her application and, in October 2019, moved to Wangaratta where she commenced working at the factory as a laboratory technician.
4At this time you were living in Wangaratta and were also employed at the tea factory as a fork-lift driver.
5You and DC came to know each other as work colleagues.
6On Sunday 8 December 2019 the former manager of the factory, QZ, hosted a barbecue at his home in Wangaratta. Many employees of the factory attended the barbecue, including yourself and DC.
7DC attended with her friends HC and MM, also Japanese nationals working at the tea factory.
8Evidence was led at trial that at the barbecue you joked about DC and HC being your girlfriends. LR gave evidence that at the barbecue he saw you go up behind DC while she was washing the dishes and start dancing with her while holding her hips from behind.
9Later that evening, at approximately 10 pm, DC, HC, MM and LR drove back to the North Cedars Caravan Park where they lived in cabins. Upon arrival at the caravan park, the four of them spent time in MM and LR cabin, being cabin 3, playing games and eating. They were speaking in Japanese.
10You left the barbecue at approximately 11.30pm and arrived unannounced and uninvited at cabin 3. The others continued to play games, and you sat in the cabin talking with them and occasionally going out for cigarettes. There is no suggestion that you were unwelcome at that time. At approximately 1am on 9 December, DC and HC decided to go back to their respective cabins. DC lived in cabin 6 and HC lived in cabin 4. You also left cabin 3 at this time.
11DC returned to her cabin and phoned her boyfriend HJ between 1.35 and 1.45am. DC gave evidence that shortly after the call she heard someone outside of her cabin calling her name. When she opened the door to see who it was, she saw you sitting on one of the chairs at the front of her cabin. DC asked you why you were sitting there. You said there were police on the road near the caravan park and you could not drive home as you had been drinking. DC asked you how much you had to drink at the party and you told her ‘12 bottles'. DC sat outside with you and you both engaged in general conversation. You requested a glass of water. DC went to her cabin to get you some water and left the cabin door open. When she went to get the water you were still sitting outside; however, you got up and went into the cabin. Inside the cabin you asked which was her bed and where her roommate was. DC told you which was her bed and said that her roommate was away in Brisbane for a couple of days.
12DC gave evidence that you hugged her when inside the cabin and that in response she told you to go home and pushed you towards the door. You said words to the effect of, 'All right, I get it, I'll go', but you did not leave.
13DC said that when you were both standing next to the fridge you kissed her. You then pinned her against the fridge, kissed her on the mouth and then went down on your knees kissing her over her clothing around her groin area between her legs, latching onto her clothing with your mouth a few times. It is this conduct of kissing DC over her shorts and latching onto her clothing in the area of her groin that forms the basis of Charge 1, assault with intent to commit a sexual act.
14You then said that you wanted to go to bed and you picked up DC and carried her to her roommate's bed. DC said she could not do anything when you did that.
15On the bed you kissed DC on the mouth and then moved yourself down the bed and kissed the area around her vagina over her clothing.
16You then 'yanked' down her shorts and underwear, forced her legs open and continued licking around the area of her clitoris. You then put your fingers into her vagina, moving them in and out a few times. This digital penetration forms the basis of Charge 2, rape. DC gave evidence that she was totally frozen and did not know what to do.
17After you penetrated DC's vagina with your fingers, you proceeded to perform oral sex upon her, penetrating her vagina with your tongue. DC gave evidence that you put your tongue into her vagina and licked around her vagina. She said that she was too scared to do anything, that she was frozen with her hands clutching the sheets. This conduct of penetrating her vagina with your tongue forms the basis of Charge 3, rape.
18After this, you got up to close the door of the cabin. DC said that when you did that she tried to escape, grabbing the blanket and covering herself with it and, while still on the bed, dragging herself backwards towards the corner of the cabin. DC said she could not say anything as she was terrified and frozen.
19After closing the door, you returned and found DC in the corner, pulled her leg and dragged her back down the bed, taking off the blanket and taking off her tank top. After further sexual activity, you put your penis into her vagina. DC said that you penetrated her vagina with your penis for some five minutes, putting your penis in and out of her vagina about three times. Again, DC stated she was terrified and could not use her voice to shout. She said that she was in pain because of you inserting your penis into her vagina and she was feeling sick. This penile-vaginal penetration forms the basis of Charge 4, rape. DC was visibly crying by this time. While you were penetrating her, DC was saying 'stop' and 'no' in Japanese. She also said her boyfriend's name a number of times. You eventually stopped. When you did, you asked DC why she was crying and that you did not understand why she was crying. According to DC, you also cried. You then put on your clothes, went outside for a cigarette and left. Before going outside, you grabbed a cloth from the kitchen and used it to wipe DC's tears.
20After you left the cabin, DC remained frozen on the bed for about five minutes. She then put her clothes on and contacted HC, MM, LR and QZ. LR contacted police and they attended at the caravan park shortly afterwards.
21Police attended at your address on the 9 December, and you were arrested. You participated in a recorded interview and said that all sexual activity between you and DC was consensual.
22At trial there was evidence of other sexual acts that were not part of the charged acts led as context evidence. For the purposes of sentencing, I do not have regard to that other alleged conduct.
Personal Circumstances
23I turn now to your personal circumstances. You were born in 1973 and you are now 50 years of age. You were 46 at the time you committed these offences.
24You grew up as an only child. Your parents separated and you were raised in Tasmania by your mother and stepfather from the age of six months to 12 years.
25You describe your childhood as dysfunctional and marred by the violence of your stepfather. You report that your stepfather was an alcoholic who was often physically violent towards your mother. Your mother would frequently leave the relationship, only to later return.
26During this time, you were under the belief your stepfather was your biological father and it was not until about 13 years of age that you met your biological father and learned you had stepsiblings.
27When you were 14 years old you were sent to the Ashley Home for Boys in Deloraine, Tasmania after getting in trouble with the police for theft and drunk and disorderly conduct. During your time at the boys home you report being locked in a cell and having to earn points in order to be allowed back to your dormitory. You disclosed to forensic psychologist Marlese Bovenkerk, who assessed you on 8 February 2023, that you were required to perform favours for the staff in order to be allowed out of the cell. You report that you remained at the home for three months only.
28You told Ms Bovenkerk that you did well at primary school, having an affinity for mathematics to the extent that you skipped Grade 1 and half of Grade 2. You described being bullied at school for wearing glasses and would get involved in physical altercations with those who teased you.
29You attended five different high schools due to your family frequently relocating. You said that after your mother and stepfather separated things went 'pear shaped' in your life. You report attending school hungover, unable to settle and you said you became the aggressor and bully at school. You were frequently suspended. You managed to complete Year 10 at the age of 15 years.
30You then travelled to Melbourne where you worked at a circus caring for animals for about six months. You returned to Tasmania when 17 but later, with your mother, moved to Victoria.
31You have engaged in a range of jobs including in the hospitality industry, factory work and seasonal fruit picking. As already mentioned, at the time of this offending you were working as a fork-lift driver.
32You have had three significant relationships. You have three biological children with your former partner Sasha. The children's ages range from 28 to 13 years. You were in contact with all three of your children before being remanded into custody for this offending. You acknowledge that you have been involved in relationships with women where you have been violent towards them.
33You were living with your mother in Wangaratta at the time of these offences. Your mother passed away last August from cancer. You have ongoing grief in relation to your mother's death and report that she was a significant support to you.
34You are currently in a long-distance relationship with a woman who resides in South Africa. You met her online some two years ago. You have Zoom visits with her from the gaol and you report that she is supportive of you.
Substance abuse
35You reported a long-standing history of problematic alcohol consumption, telling Ms Bovenkerk that you first attended an Alcoholics Anonymous meeting when you were 14 years old. You have also used illicit drugs, including cannabis and LSD, the latter drug commencing after you mothers' death. You reported having participated in alcohol and other drug counselling on many occasions in the past, all of which have been unsuccessful.
Psychological report – Marlese Bovenkerk, dated 9 March 2023
36Ms Bovenkerk prepared a detailed report, dated 9 March 2023, that was tendered on your behalf and marked Exhibit D2.
37You maintained your denial of the offences, stating to Ms Bovenkerk. 'I've been railroaded … there was no offending'.
38You told Ms Bovenkerk that all intimate contact between you and the victim was consensual, including sexual intercourse. You admitted, however, that 'something went wrong … I didn't see it … I saw it at the end', and acknowledged that it was possible that you had misread the situation. You told Ms Bovenkerk that when you realised the victim had tears on her face, was breathing differently, and that she 'wasn't moaning', you got off her straight away.
39Ms Bovenkerk was not able to complete her assessment at the time she saw you on 8 February 2023. A follow-up appointment was made which, through no fault of your own, you did not attend. Your plea hearing was adjourned part heard to allow a second report to be prepared by Ms Bovenkerk. Exhibit D3 is her second report, dated 2 June 2023, prepared after she saw you on 24 April and 3 May 2023.
40You acknowledged a prior history of toxic and dysfunctional relationships which included family violence such as yelling, hitting and pushing during arguments. You reported that part of your behaviour was attributable to substance abuse, though you also identified that you have not been able to control your behaviour.
41Regarding your offending, Ms Bovenkerk stated that there appeared to be a small shift in you accepting responsibility for the offending. While maintaining your belief that the sexual activity was consensual, you said that, 'something went wrong, it's my fault'. You further stated, 'I know I'm not that type of person. How did I think it was alright to have sex with that young lady?' And you further commented, 'I did not feel that I forced it, there was no "no"'. You clarified that you did not suggest the victim was lying. However, you reflected that you were uncertain 'what headspace' you were in and maintained you did not know what happened.
42Ms Bovenkerk conducted a number of psychometric tests including the patient health questionnaire, which is a brief tool used to assist in diagnosing depression. Your score on the test indicated moderately severe depressive symptoms in the fortnight preceding the assessment. A generalised anxiety disorder assessment was conducted. This test asks patients to evaluate their level of symptoms over the last two weeks. Your test score was indicative of severe anxiety symptoms in the fortnight preceding the assessment. An adult ADHD self-rating scale test, which Ms Bovenkerk acknowledged had certain limitations, produced results not consistent with an ADHD diagnosis, while on part of the test you did endorse a number of hyperactive and inattentive symptoms. This is a screening tool only.
43On the Millon clinical multi-axial inventory your profile was considered to be of questionable validity. The disclosure index was significantly elevated, suggesting over-reporting of symptoms. Ms Bovenkerk stated that the over-reporting may be related to your significant mental health issues at the time of test taking. The results are therefore interpreted with caution, stating it would be of advantage to repeat the tests once your mental state has stabilised. However, your responses reached clinical significance on two of the three severe personality scales: schizotypal and paranoid.
44On the personality pattern scales, narcissism was also elevated within the clinically significant range. Ms Bovenkerk stated there were a number of moderation elevations across the personality scales: avoidant, melancholic, dependent, negativistic, masochistic and borderline. She stated that although some of these personality traits and patterns are evident in your clinical presentation, it is not typical to see this number of elevations on an individual's profile and this is therefore likely reflective of severe mental health issues at the time of test taking. Ms Bovenkerk also stated that your results on the clinical syndrome scales reached clinical significance on generalised anxiety, somatic symptoms, bipolar spectrum, persistent depression, alcohol use, post-traumatic stress, schizophrenic spectrum and major depression scales. Drug use and delusional scales were moderately elevated.
45Ms Bovenkerk concluded that overall your profile on the Millon clinical multi-axial inventory, while over-inflated due to your mental state at the time of testing, was largely expected given your presentation at interview. She stated there is evidence of significant psychopathology, particularly depression, anxiety and trauma, with alcohol and substance abuse to manage your distress. There is also evidence of a number of personality vulnerabilities and traits affecting your behaviour and functioning.
46Ms Bovenkerk stated that the following diagnoses are indicated in accordance with the diagnostic and statistic manual of mental disorders, DSM-V:
· alcohol use disorder, in early remission in a controlled environment;
· other hallucinogen use disorder, in early remission in a controlled environment;
· persistent depressive disorder with intermittent major depressive episodes;
· generalised anxiety disorder; and
· post-traumatic stress disorder.
47It is Ms Bovenkerk's opinion that you pose a moderate risk of perpetrating sexual violence in the future, meaning that you are in a category that poses a risk that is comparable to the average sex offender.
48Ms Bovenkerk considers that you need psychiatric review over a longitudinal period in order to confirm and isolate your symptoms.
Criminal record
49You have admitted your criminal record.
50I do not intend set out your lengthy list of criminal convictions in any detail but note that you have served a number of prison terms.
51In 1993 this court sentenced you, on two charges of armed robbery, to 24 months' imprisonment with a 12-month minimum.
52On 27 February 1996, you were sentenced to four months' imprisonment for the offence of intentionally or recklessly causing injury.
53On 3 December 1998, for the offence of assault in company, theft, three charges of breaching an intervention order and other charges, you were placed on an 18‑month community based order.
54On 4 May 2012, for intentionally causing injury and unlawful assault you were placed on a 12-month community correction order. You contravened that order and were sentence to four months' imprisonment.
55On 18 October 2013, for the offences of false imprisonment, intentionally causing injury, recklessly causing injury, making a threat to kill and common law assault you were sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years and three months.
56On 17 February 2017, for the offences of reckless conduct endangering serious injury, stalking, making a threat to kill, threat to destroy property, unlawful assault and breaching a term or condition of your parole you were sentenced to four months' imprisonment.
57You do not have any prior convictions for sexual offending. However, you do have prior convictions for assaults upon your previous partner.
Submissions
58Ms Duckett, who appeared on behalf of the Director of Public Prosecutions, submitted that each of the rape charges are Category 1 offences and require the imposition of a custodial sentence upon conviction. They are also standard sentence offences for which the standard sentence is 10 years' imprisonment.
59Ms Duckett submitted that your offending was very serious, noting that the victim was vulnerable, isolated, alone in her cabin and there were cultural and language barriers of which you were aware. It was put that you exploited that vulnerability.
60Ms Duckett submitted that your conduct was not an aberrant, spontaneous act, nor did it reflect a mere lapse of judgment. Ms Duckett submitted you were persistent in your offending and engaged in multiple acts of rape which, although occurring in the course of one continuous episode, should not be permitted to obscure the gravity of your conduct. Relying on the decision in Mush v The Queen,[1] it was submitted that each act of rape represented a conscious, deliberate choice to violate the person of your victim. Charge 4 was aggravated by the fact that you did not wear a condom and thus exposed DC to the risk of unwanted pregnancy and/or sexually transmitted disease.
[1] [2019] VSCA 307, at [72]
61Ms Duckett noted that you pleaded not guilty to each charge, ran a contested committal hearing and trial and you continue to deny your offending, thus demonstrating no insight into what you did and no remorse for what you did. Your conduct in maintaining your denial of the offending is relevant, it was submitted, to an assessment of your prospects of rehabilitation.
62Ms Duckett submitted that general deterrence, just punishment and denunciation are matters at the forefront of the sentencing discretion. Furthermore, Ms Duckett pointed to your history of criminal offending, including for violent offending against a former domestic partner.
63Mr Pearson, who appeared on your behalf, submitted that in respect of each rape charge the case against you was put on the basis that you either gave no thought to whether the victim was consenting or that, to the extent that you may have believed that she was consenting, your belief was not reasonable in the circumstances. Mr Pearson submitted that it is open to the court to find as a fact that you may have believed DC was consenting but that your belief in this regard was not reasonable.
64Mr Pearson submitted that each of the offences were committed as part of an ongoing criminal episode and that a reasonable level of concurrency as between each charge should be ordered.
65While accepting that you have an extensive criminal record, Mr Pearson submitted that this is the first time you fall to be sentenced for sexual offending. He noted that since your release from custody in 2015 you stayed out of serious trouble until the commission of these offences on 9 December 2019.
66Mr Pearson pointed to the delay in finalising the charges against you, submitting you have had the stress of the allegations hanging over you for an extended period of time. He also submitted that you have 'stayed mostly out of trouble' since charged with these offences. Mr Pearson informed me that in 2021 you were charged with breaching an intervention order where the protected person was your former partner.
67Mr Pearson submitted that your prospects of rehabilitation are reasonable, given this is the first time you have committed sexual violence; that since 2015 the frequency of your offending has lessened; you have been employed for much of your adult life; and your recent abstinence from drug and alcohol use.
68Mr Pearson also relied on Verdins principle number 5, submitting that because of your mental health issues Ms Bovenkerk considered you will experience prison in a 'more weighty' manner than a person who does not have similar mental state features. He further submitted in reliance on Verdins principle 6 that prison may exacerbate your symptoms profile.
69In further submissions, following receipt of Ms Bovenkerk's second report, Mr Pearson submitted that while there is no causal connection between the offending and your mental state, it was nevertheless open to the court to find that Verdins principles 5 and 6 are enlivened. Mr Pearson submitted that the likelihood of imprisonment having a significant adverse effect upon your mental state has, according to Ms Bovenkerk's second report, already happened.
70Mr Pearson also submitted that the observations of Ms Bovenkerk, at paragraphs 39 and 40 of her second report, appear to reflect a 'nascent acceptance' by you as to the wrongfulness of your behaviour.
71Mr Pearson accepted that I should sentence you to a term of imprisonment involving a head sentence and non-parole period.
Sentencing considerations
72The maximum penalties that may be imposed in respect to Charge 1 is 15 years' imprisonment and in respect to the offence of rape 25 years' imprisonment. I accept Ms Duckett's submission that the fixing of such a high maximum penalty for the offence of rape reflects the abhorrence with which this crime is viewed by the legislature and the community.
73DC was a young Japanese national who travelled to Australia on a working holiday visa. She, like every other person in the community, had the right to feel and be safe, particularly in her own home, which in this instance was a cabin at a caravan park. You violated that right as well as her physical and emotional integrity when you sexually offended against her. She was alone, of diminutive stature and weight, and vulnerable in a foreign country.
74In DPP v Mokhtari,[2] the court stated:
'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.'[3]
[2] [2020] VSCA 161
[3] Ibid [41]
75In Mason v The Queen,[4] a decision relied upon by the learned prosecutor, Winneke P stated:
'It should not be forgotten that the crime of rape is an intensely personal crime which for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.'
[4] [2001] VSCA 62 at [8]
76Although the act of rape is an act of violence, I take into account in your favour that there were no additional acts of violence, nor any threats of violence.
77Your failure to use a condom is an aggravating feature of Charge 4. Although it is not suggested that DC became pregnant or contracted a sexually transmitted disease, the courts have long held that the absence of a condom is an aggravating feature of penile vaginal rape, whether or not pregnancy or disease results.
78As I earlier stated, Mr Pearson submitted that I should sentence you on the basis that you had a belief that the victim was consenting but that in the circumstances your belief was not reasonable.
79In your trial, the jury was instructed that for the offence of rape to be proved they must be satisfied beyond reasonable doubt of all elements of the offence. The third element of which they had to be satisfied is that you did not reasonably believe that the DC was consenting to the relevant sexual penetration. The jury's verdict on each charge of rape means that they were satisfied beyond reasonable doubt of that third element.
80The jury was also instructed on Charge 1, assault with intent to commit a sexual offence, that the fourth element required them to be satisfied beyond reasonable doubt that at the time of the assault you did not reasonably believe that DC would consent to the intended sexual act. Again, the jury's verdict means that they were satisfied of that element beyond reasonable doubt.
81As to the relevant element concerning your state of mind on each charge, the jury was instructed, consistent with the way the prosecution put its case, that the element would be satisfied if you gave no thought to whether DC was consenting, or, even if you believed that DC was consenting, that belief was not reasonable in all the circumstances.
82Insofar as Mr Pearson invites me to make a finding as to your state of mind, I am unable to accept his submission that you held a belief that the complainant was consenting to each charged act, albeit an unreasonable one.
83In considering Mr Pearson's submission, I have had careful regard to DC's evidence, which in my opinion she gave in a frank and dignified manner. I fully accept her evidence.
84Having regard to her evidence, I am of the firm view that she did not say or do anything that even remotely suggested that she was or might have been a willing participant in any of the sexual acts you perpetrated against her. DC said that after the first hug, she pushed you towards the door saying in English 'go home'. You acknowledged her by saying words to the effect of, 'All right, I get it, I'll go.
85I do not accept that you and she were kissing and cuddling, both having a good time near the fridge before you dropped to your knees, as you suggested in your recorded interview. This is inconsistent with DC's evidence.
86I accept DC's evidence that when you were kissing her groin area she was pinned against the fridge and was pushing you with both hands, trying to push you away from her.
87DC's conduct in saying 'go home', in pushing you towards the door, in pushing you away from her, in my opinion, could not have led to you having a belief that DC was consenting to any form of amorous conduct with you, let alone the sexual acts and penetrations that followed shortly thereafter. I also take into account that you picked DC up off the ground and carried her to her roommate's bed and placed her on it. DC did not voluntarily walk to the bed. On the bed, you 'yanked' down DC's shorts and underwear, forcing her legs open. Again, she did not do or say anything to indicate or that might indicate that she was consenting to the sexual penetrations that almost immediately thereafter followed.
88Just before the last act of penetration, the penile-vaginal penetration, after you got up to close the door, DC retreated to the corner of the bed and covered herself with a blanket. You dragged her down the bed, removing the blanket from her before penetrating her with your penis. Again, she did not do or say anything to indicate or that might indicate that she was consenting to the penetration that occurred almost immediately thereafter.
89To the extent that you might have mistaken by her saying 'no' or 'stop' in Japanese, or her other utterances as indicative of consent, I find that fanciful.
90Given my finding that DC did not do or say anything that indicated she might have been a willing participant, and given my acceptance of her evidence including that she pushed you towards the door telling you to go home, that she endeavoured to push you away as you were kissing her groin area when near the fridge, and that you dragged her down the bed from where she had retreated and removed the blanket from her, it is difficult to understand what could have given rise to a belief on your part that DC was consenting to any of the acts of penetration.
91Insofar as I have been asked to make a finding that you held a belief in consent, I am unable to do so. Given the way the element concerning your state of mind was left to the jury in respect of each charge, in my opinion, you gave no thought to whether NS was consenting to any of the acts of penetration or the assault. I make that finding beyond reasonable doubt.
92Your offending was serious and your moral culpability high. There was nothing advanced, in my opinion, that served to reduce your moral culpability.
93Although a victim impact statement has not been filed, I have had the opportunity of hearing the victim give her evidence at trial. It is clear that your offending was highly terrifying and distressing to her. I am able to draw this inference beyond reasonable doubt based on what DC said and her demeanour while giving evidence.
94You have pleaded not guilty to the offences and you elected, as is your right, to have a committal hearing and trial. You are not to be punished for exercising your rights. However, the usual often significant benefits of pleas of guilty are not available to you. You are without remorse for your conduct and if there is a developing acceptance, as submitted by your counsel, you still have a long way to go in accepting fully the wrongfulness of your behaviour. Ms Bovenkerk's comments at paragraphs 39 and 40 are based upon what you told her, which is a concession of sorts that something went wrong but you do not know what.
95Given Ms Bovenkerk's findings as to your mental state, I accept that Verdins' principles 5 and 6 operate to moderate the sentence to be imposed. Ms Bovenkerk stated in her second report that since the findings of guilt and incarceration your mood has continued to deteriorate and you are currently experiencing a major depressive disorder. She states that the potential for your mental health to continue to deteriorate in a custodial environment remains a concern, but she notes that you appear to be engaging in psychoeducational programs and that you have taken steps to obtain support for your mental health through engagement with psychiatric nurses and a psychiatrist.
96I do not accept the submission that your prospects of rehabilitation are reasonable. You maintain your denial of the offending; you have a lengthy criminal history; you have a number of psychological conditions that require investigation and treatment; and you present a moderate risk of perpetrating sexual violence in the future. Your prospects at this time are at best guarded.
97In my opinion the sentencing principles of general deterrence and denunciation are the paramount sentencing considerations. Persons in the community minded to commit offences such as yours should understand that they risk condign punishment. Your conduct must also be strongly denounced and condemned by this court through the sentence to be imposed. It was truly abhorrent behaviour perpetrated by you upon a defenceless and vulnerable woman.
98There is also a strong need that the sentence to be imposed deters you from further offending. You need to understand that if you continue to break the law, particularly with offending involving violence or sexual violence, you will be met with increasingly heavier sentences. The sentence to be imposed must also be one that justly punishes you for your offending.
99Regarding the issue of delay, in Stafford v The Queen[5] the court considered that the delay of over four years between the commission of the offences and sentencing, none of which was attributable to the appellant, imposed a heavy burden on all parties, including the appellant.
[5] [2022] VSCA 229
100The court stated:
'Similarly, an unresolved plea of not guilty over an extended period over and above that which might reasonably be required to bring a matter to trial is a burden that must be acknowledged and taken into account by a sentencing judge as appropriate … and the burden of a delay in trial is not to be ignored merely because the accused person is ultimately found guilty.'[6]
[6] At paragraph [28]
101The delay in this case is not attributable to you and your sentence will be moderated having regard to the emotional burden of the delay. However, it is not said that during the period of the delay you have stayed out of trouble. As was frankly acknowledged by you your counsel, you breached an intervention order in 2021.
102The offence of rape is subject to the standard sentence scheme in the Sentencing Act 1991. The standard sentence for rape, as I have already said, is 10 years' imprisonment.
103Section 5A(1)(b) of the Sentencing Act provides that:
'The period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.'
104Section 5A(3) provides that the objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of your offending.
105In DPP v Todd Kaye JA stated that the -
'Standard sentencing regime does not alter the established principles by which a particular sentence is arrived at by a determination of the facts, and the application of legal principles to those facts. Ultimately, the sentence is the result of the instinctive synthesis by a judge of the facts, legal principles, and other factors relevant to the case, in the exercise of the judge's sentencing discretion'.[7]
[7] [2019] VSC 585, at [60]
106I consider that the objective gravity of your offending in each of Charges 2, 3 and 4 falls within the 'middle of the range of seriousness' for the offence of rape. I do so having regard to the circumstances of your offending conduct which I earlier outlined.
107I have had regard to current sentencing practice. The only sentences for the offence of rape to which I have had regard as relevant to current sentencing practice are those to which the standard sentence regime applies.
108Mr Pearson submitted that your offending occurred in the course of a single episode. Each offence occurred over a relatively short period of time in the same place and involved the same victim. This consideration is relevant to the application of the principle of totality and the degree of cumulation, if any, that should be ordered in respect of the separate offences.
109In Flynn (a pseudonym) v The Queen, the Court stated:
'[O]n any view, in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.[8]
[8] [2020] VSCA 173 at [115]
110I have also had regard to the decision in Mush relied on by Ms Duckett.
111I propose to sentence you to terms of imprisonment on Charges 1 and 2. Accordingly, you become a serious sexual offender under Part 2A of the Sentencing Act 1991.
112Sections 6D and 6E of the Sentencing Act apply. Under s6D I must regard the protection of the community from you as the principal purpose for which the sentence is to be imposed. That section enables a court, in order to achieve that purpose, to impose a sentence longer than that which is proportionate to the gravity of the offence. A disproportionate sentence has not been sought by the learned prosecutor and I do not intend to impose such a sentence.
113Section 6E provides that:
'Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.'
114In Zhao v The Queen[9] the court stated in respect to single episode cases:
'Section 6E must, of course, be given its proper effect. At the same time, and balanced against the presumption that it mandates in favour of cumulation, a sentencing judge should not put entirely to one side the approach usually taken to the commission of several offences as part of a single episode. In addition … a sentencing judge should not set at nought the requirements of totality. The balance is difficult to strike, but that is a product of the legislative requirement that is in place.'[10]
[9] [2018] VSCA 267
[10] Ibid [99]
115Given what was said in Zhao and the requirements of totality, I do not intend to impose fully cumulative sentences in respect of Charges 3 and 4. Given the close proximity of each of the acts giving rise to the charges and the application of the principle of totality, it is appropriate, in my opinion, that there be a significant degree of concurrency in the sentences to be imposed, but some cumulation is required to give proper effect to s6E.
Sentence
116I now turn to sentence, Mr Reeve. You may remain seated.
117Having regard to all matters put to me by both counsel and the application of relevant sentencing principles, you are to be sentenced as follows:
On Charge 1 you convicted and sentenced to a term of imprisonment of eight months.
On Charge 2 you are convicted and sentenced to a term of imprisonment of six years.
On Charge 3 you are convicted and sentenced to a term of imprisonment of six years and four months.
On Charge 4 you are convicted and sentenced to a term of imprisonment of seven years.
118I direct that the sentence imposed on Charge 4 is the base sentence and I make the following orders for cumulation: one month of the sentence imposed on Charge 1, nine months of the sentence imposed on Charge 2 and 12 months of the sentence imposed on Charge 3 be served cumulatively on each other and on the base sentence. This makes a total effective sentence of eight years and 10 months' imprisonment.
119I have imposed sentences on each of the rape charges that are below the standard sentence. I have come to this decision having regard to each of the other sentencing considerations informing the instinctive synthesis approach to sentencing including your early difficult childhood experiences, your mental health issues, the impact of imprisonment on your mental health and the delay in prosecution.
120I set a non-parole period of six years and three months' imprisonment. Having regard to your offending, your criminal history and my assessment of your prospects of rehabilitation, this is the minimum period I consider justice requires that you serve.
121Pursuant to s18 of the Sentencing Act, the period of 293 days not including today is reckoned as time already served under this sentence.
122I direct that there be entered in the records of the court that on Charges 3 and 4 you are sentenced as a serious sex offender.
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