Director of Public Prosecutions v Russell
[2016] VCC 1312
•2 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA KAYNE RUSSELL |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 26 August 2016 | |
DATE OF SENTENCE: | 2 September 2016 | |
CASE MAY BE CITED AS: | DPP v Russell | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1312 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T. Gyorffy QC Ms B. Moleta [Sentence] | Office of Public Prosecutions |
| For the Accused | Mr R. Lawrence | Greg Thomas Solicitors |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the victim and family or witnesses.
HER HONOUR:
1 Joshua Russell, you have pleaded guilty to one charge on Indictment E13211979.1 of intentionally cause injury. The maximum penalty applicable to that offence is ten years’ imprisonment.
2 You have pleaded guilty on Indictment E13211979.3 to one charge of attempting to pervert the course of justice. The maximum penalty applicable to that offence is 25 years’ imprisonment.
3 You have pleaded guilty to ten charges of indecent assault on Indictment E13211979.5. The maximum penalty applicable to each offence is ten years’ imprisonment. On that same indictment you have also pleaded guilty to three charges of aggravated burglary, with a maximum penalty of 25 years’ imprisonment on each charge, and you have also pleaded guilty on that indictment to two charges of persistent contravention of a notice and order. The maximum penalty applicable to each of those two charges is five years’ imprisonment, a maximum fine of 600 penalty units, or both.
4 I briefly indicate, by way of chronology, in relation to Charge 17 on Indictment E13211979.1, you pleaded guilty to that charge on 4 April 2016, which was prior to your first trial commencing on Indictment E13211979.2.
5
That trial involved 17 charges of rape, one charge of attempted rape, four charges of aggravated burglary and two charges of persistent contravention of notices and orders. After eight days, the jury in that trial was discharged on
20 April 2016, without verdict. The trial did not reach address or charge stage.
6 Following that trial, a further indictment, Indictment E13211979.4, alleging fifteen charges of rape, one charge of attempted rape, four charges of aggravated burglary and two charges of persistent contravention of notices and orders was filed over, and after six days, on 28 April 2016, that jury was also discharged without verdict. That trial also did not reach closing addresses or my charge.
7 Trial three was to commence on 11 July 2016 on Indictment E13211979.4, however prior to that trial commencing a voir dire was conducted with the complainant, Kyla Becker[1]. Shortly after that the trial indictment resolved and Indictment E13211979.5 was filed over, reflecting the 15 charges to which you have pleaded guilty.
[1] Kyla Becker is a pseudonym.
8 On 11 July 2016, you were arraigned on Indictment E13211979.3 and Indictment E13211979.5 and pleaded guilty to all the charges on those two indictments. The remaining charges on Indictment E13211979.1, E13211979.2 and E13211979.4 were stayed. Your pleas of guilty to all but Charge 17 on Indictment E13211979.1, occurred much later, after there had been two trials relevant to the majority of the charges. I note that the complainant was required to give evidence at the initial trial in April 2016. At the time of the second trial her evidence was replayed, having been pre-recorded. I accept your pleas of guilty to Indictments E13211979.1 and E13211979.3 were however entered at the earliest opportunity, in particular I can understand you not formally pleading guilty to attempting to pervert the course of justice prior to the charges in E13211979.5 being resolved.
9 Your crimes arise out of events which took place between yourself and Kyla Becker in relation to the majority of the charges. The intentionally cause injury charge related to Kyla’s father, Martin Becker[2], and the charge of attempting to pervert the course of justice involved your contact with Hanna William[3].
[2] Martin Becker is a pseudonym.
[3] Hannan William is a pseudonym.
10 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with an agreed summary for your plea hearing (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case, in my opinion, are most serious and disturbing.
11 It is necessary to set out the circumstances in which each of the charges before me occurred, in order to assess the gravity of the charges that are before me. I will endeavour to keep this summary to a minimum in these sentencing remarks.
12 Kyla was born in 1995. As a teenager, she had behavioural and mental health issues, and at 14 years of age was placed in Department of Health and Human Services' care. Kyla is now 20 years of age.
13 You were born on 30 June 1991 and were 22 and 23 years of age at the time of your offending, and you are 25 at sentence.
14 In approximately October 2013, you and Kyla commenced a sexual relationship and began to cohabit at 9A Bolton Street, Box Hill. From the first week the relationship was physically violent. You would hit and punch Kyla, grab her by the hair and smack her head into walls.
15 I turn to Indictment E13211979.5 and the fifteen charges contained therein. I will also briefly summarise that offending for the purpose of these sentencing remarks. I have, of course, read the agreed prosecution opening in which the allegations are set out in much greater detail, however some description by me is required when assessing your offending that is before me, and I now turn to that.
16 Turning to Charge 1. On 7 November 2013 (approximately one month after you began to live at Bolton Street), Kyla had a miscarriage (referrable to her relationship with her previous partner).
17 On 10 November 2013, you and Kyla were at the Bolton Street address. You asked the identity of the father and were told it was not you, which led to an argument. You dragged Kyla into the bedroom by the hair. You held her against the wardrobe, pulled down her underwear and rubbed your penis against her vagina, holding her by the hair with her face against the wardrobe, then pulling her back by the hair.
18 Throughout the incident Kyla was taking medication, and was still bleeding from the miscarriage. She also vomited.
19 On 30 November 2013, you accused Kyla of cheating on you and an argument ensued. You punched Kyla to her face. Police attended at the Bolton Street address at about 10.30 pm. Both of you told police the argument was about fidelity and said there had not been any violence, or threat of violence. Kyla did not tell police the truth because she was scared of you and because she loved you.
20 When the police left, you became very angry and yelled at Kyla, and punched her one punch after another to her face, legs, arms, chest and stomach, which caused bruising and red marks.
21 The prosecution also relies upon acts, not the subject of any particular charge as providing context for the charged offences detailing your repeated violence towards Kyla in your relationship with her. One such incident was on 4 February 2014 at Clara Leach’s[4] home in South Melbourne (that is, Kyla’s mother). In the early hours of 4 February, Clara Leach witnessed you being violent towards her daughter. It was not the first time she had seen your violence, or controlling behaviour.
[4] Clara Leach is a pseudonym.
22 At various times that day she heard you telling Kyla what to say about missing money and accuse Kyla of being on the phone to another man. Clara also saw you push Kyla and raise your fists towards her when arguing. On 4 February 2014 Clara also heard screaming and saw both of you pushing and pulling at each other. She told you both to leave her house. You grabbed Kyla by the hair, dragged her down the stairs, punched and kicked her, grabbed her by the throat and held her against the wall.
23 You left the house, but returned shortly thereafter, crying and promising it would not happen again. When police attended at 2.42 am Kyla denied any assault upon her.
24 Turning to Charge 2, indecent assault. During the evening of 14 February 2014, Kyla had cooked pasta for dinner and took a plate to you in the lounge room. You threw the plate of food at her. Kyla went to the bedroom and you entered the room with a three-colour AV cord in your hand. You whipped her twice across the legs with the cord, drawing blood. You also used the cord to tie her wrists above her head then lit a candle and told her you loved her. You rubbed your penis against her vagina, Charge 2.
25 You spat in Kyla’s face, called her a whore and a slut. Kyla had red marks on her wrist as a result.
26 Turning to another incident, again not the subject of any charge.
27 On 16 February 2014, you and Kyla were arguing, in part, over you wanting to go to New South Wales for Anzac Day. Kyla locked herself in the bedroom. You broke the lock and entered the room screaming. You punched her to the breasts and bottom, bit her on her shoulder and her chest, causing bruising and teeth marks. She sustained a split to the inside of her lip.
28 Police attended at the address. Kyla told police she was happy in her relationship with you.
29 Turning to Charge 3. On 18 February 2014 Kyla was at Bolton Street, cooking food. You came up behind her and said words to the effect of “I do love you. I’m not going to give up this easy”, and kissed her on the back of her neck. She told you to stop, as she was not in the mood. This caused you to become angry. You got a knife from the kitchen bench with a blade of about 30 centimetres and held it across Kyla’s throat, and pulled her underwear down.
30 You moved the knife away and up and, holding Kyla by the left hip, rubbed your penis against her vagina. You dropped the knife, then pulled her back on to you in a rough manner, and repeatedly rubbed your penis against her vagina. You then picked up the knife and ran it from her shoulder to halfway down her back.
31 You said words to the effect “If you ever say a word about this I’ll kill you”. Kyla was scared.
32 Turning to another incident relied upon by the prosecution as context, not the subject of any charge. On 24 February 2014 Kyla arrived home to the Bolton Street address early from school. An argument ensued and as a result, at about 3.00 pm police attended.
33 In March 2014, again relied upon by the prosecution, but not as a charge, Angela Becker[5], the stepmother of Kyla, picked her up from Bolton Street for lunch or coffee and saw that she had two black eyes.
[5] Angela Becker is a pseudonym.
34 I turn to Charge 4. On 20 April 2014, Kyla had been to lunch with her father. When Kyla returned home an argument ensued. You became furious, grabbed her and shoved her against the wall, repeatedly slamming her body and head against the wall. You pushed her into an armchair, held her down and spat in her face.
35 You ripped her skirt and grabbed her by her hair. You pushed her against the chair. Kyla split her head and passed out. When she regained consciousness you were rubbing your penis against her vagina.
36 After that Kyla went to have a bath and, in the bath, she ran a razor blade over her arm, drawing blood. When you saw the blood, you called her an attention-seeking whore.
37 Turning to charge 5. On 8 May 2014 Kyla went to a hotel with her father and others to celebrate her brother’s birthday, and arrived home at about 9.30pm. You asked where she had been. You picked her up and carried her into the bedroom, threw her onto the floor, got on top of her and pinned her down. You rubbed your penis against her vagina (Charge 5). She asked you to stop. You then put your penis in her face and rubbed it against her mouth, ejaculating on her face.
38 Again, turning to other incidents not the subject of any charges, but relied upon by the prosecution to set the context of the relationship. In late May 2014, Angela Becker collected Kyla from Bolton Street to take her out to dinner and saw she had two black eyes.
39 Turning to an incident in June/July 2014, also not a charge, Kyla was at home at Bolton Street with friends. You returned to the house and screamed “What the fuck are they doing here?” Kyla ran to a car. You left the house and began to kick Kyla, when she was seated in the back seat of the car. You were angry, and whilst holding an empty bottle of Jack Daniels, said words to the effect “Do you want to be bottled bitch?”
40 Turning to part of Charge 9, persistent contravention of a Family Violence Safety Notice, issued on 29 June 2014. On 29 June 2014, you and Kyla had an argument. You again accused her of cheating on you. You hit Kyla to the side of the head before dragging her to the bedroom. You punched her to the side of the head about eight or nine times, hit her on her arms, chest and legs and called her a whore.
41 Kyla then attended Box Hill Hospital in the early hours of the morning and was later driven home by her father.
42 When Kyla arrived home you threw an Xbox controller at her, hitting her hip. Police and ambulance arrived. You were taken to hospital, voluntarily, by ambulance.
43 Details of the contravention of the Notice are contained within Exhibit A (paragraphs 59-66).
44 Turning to Charge 6 on 30 June 2014, the day after the Safety Notice was issued. That morning Kyla woke to you rubbing your penis against her back. She told you to stop. You replied with words to the effect “You can’t speak to me like that, it’s my birthday”.
45 You grabbed Kyla by the hair and forced her face into the mattress, and grabbed her hands behind her back. You then rubbed your penis against her anus and vagina. You ejaculated, spat on her back and called her a whore.
46 A few hours later Kyla was in the bedroom watching television. She told you to leave her alone, but you grabbed her by the ankles. She asked you to stop, you said “But why? I love you” and you again rubbed your penis against her vagina and ejaculated over her face. Kyla said that she “felt like nothing”.
47 At about 2.00 am the next day, you were playing on the Xbox and Kyla asked you to turn it down. You punched her to the head, face, legs and stomach, then took her to the kitchen, bent her over the kitchen bench and rubbed your penis against her vagina, ejaculating on the floor. You told her to clean it up.
48 I turn to Charge 7. On 5 July 2014, you received a call from your motorcycle club “Sons of Aus”, demanding you pay a $400 bar tab. You demanded Kyla pay the tab. You screamed at her, went to the kitchen, obtained a carving fork and said words to the effect “Do you want to get stabbed with this? You’re a whore.” You threw the fork down, ran at Kyla and tackled her, slamming her to the ground. She hit her head.
49 You dragged her by the hair into the hallway then picked up her pet cat and began to torment it. You punched Kyla to the back of the head, causing dizziness.
50 Kyla crawled into the bedroom and tried to get up. You hit her to the arms and face, and using the cord of the dressing gown, tied her ankles together. You then rubbed your penis against her vagina. You slapped and punched Kyla and she could taste blood in her mouth.
51 I turn to Charge 8. On 6 July 2014, you and Kyla fought and she locked herself in the bedroom. You kicked the door down and broke the lock. You were holding a rake in your hands.
52 You dragged Kyla to the floor, sat on her, held her down by the chest and dragged her to the bed by her hair, and called her a whore. You rubbed your penis against her vagina.
53 Kyla managed to lock you out of the house. You threatened to blow up the house and burn it down with her inside. As a result, Kyla phoned one of her parents and asked them to call 000. Police then arrived.
54 Turning to Charge 9. The contraventions relied upon in respect to Charge 9 were summarised as:
(i)Returning to Bolton Street and approaching Kyla during the Box Hill incident; and
(ii) The three parts of your birthday incident.
55 In approximately late July, Kyla ended her relationship with you.
56 On 7 August 2014, Kyla invited you back to the Bolton Street address, as you were homeless and she felt under pressure to do so. At that time she was about six weeks pregnant to you. On 8 August 2014 she told you they “were done”. You began screaming and took some of Kyla’s Seroquel medication. You began to head butt the walls of the house.
57 Kyla tried to dial 000 but you pushed her to her chest and tried to get to the phone.
58 Police arrived about 1.25 am. You were taken to hospital by ambulance and were later served with a Family Violence Safety Notice, served on you at the Box Hill Hospital.
59 Kyla ended the relationship with you permanently on 9 August 2014. On that same day, 9 August at 3.31 pm, you participated in a record of interview. You described Kyla as your fiancée and said she was “hormonal” due to pregnancy. You said the damage caused to the plasterboard in the two photographs was not caused by you but by Kyla’s ex-partner. You did not know where the injury to your head and back of your hands had come from but said it was probable the head injury came from head butting the wall.
60 On 12 August 2014, approximately three days later, Kyla went with her father and stepmother to Ringwood Magistrates’ Court and obtained an Intervention Order against you. Charges 10-14 occurred when that Order was in force.
61 I turn to Charge 10. After about 9.00 am on Sunday 24 August 2014, Kyla was home alone in Bolton Street, in bed, suffering morning sickness. She heard the front door open and you screaming about Cash Converters. She yelled at you to leave the house. You punched her to her face and tipped the living room table over, upsetting a computer monitor, keyboard and mouse.
62 At about 9.30 am Kyla phoned her father asking him to collect her. A little later, Martin Becker phoned Kyla to say he was out the front. She ran out and got into his car. Martin then entered the Bolton Street address. It was then Charge 17 intentionally cause injury to Martin Becker occurred.
63 I turn to Charge 17 on Indictment E13211979.1, intentionally cause injury.
64 On 24 August 2014, Kyla’s father, Martin, received a phone call from Kyla at about 9.30 am and went to her home at 9A Bolton Street. Kyla came out to his car in tears and told him you were inside the house. Martin went into the house and told you to get out, and that you should not be there. You said “make me”. Further discussion occurred when you walked towards Martin and shoved him in the chest with your two hands, causing him to stumble backwards.
65 You punched Martin to the side of his face with a closed fist, which split his lip and caused it to bleed. You grabbed him in a choke-hold, punching him five or six times to the back of the head before you left the house.
66 Police attended. Martin received three stitches and there was soft-tissue injury to his jaw and neck, which required physiotherapy.
67 A short time later police saw you on Middleborough Road, Box Hill. You were taken to Box Hill Police Station where another interview was conducted.
68 You told police Kyla kept telling you the intervention order was dropped. The conditions of the order, you said, were vaguely explained to you, but not properly. You said that Kyla had been contacting you, you had nowhere to go and she was a “lying, manipulating little fuck”. You remembered "cracking the shits with her that morning", because she would not take your television to Cash Converters to get your phone back.
69 On 24 August Kyla made a partial disclosure of sexual violence by you to her. Kyla told Senior Constable Gregory of the incident that day but did not go into detail.
70
Relevant to Charge 15, the prosecution relied on “nuisance calls”. Throughout September 2014, Kyla received about two hundred nuisance calls from both blocked and unknown phone numbers. Call records showed your mobile phone service was used to contact Kyla four times on 18 September, once on
19 September and 12 times on 22 September. Also relevant as part of Charge 15, was the ‘first Facebook incident’. On 4 September 2014, you updated your profile picture on your Facebook account to show an image of yourself and Kyla. That image was old.
71
Also part of Charge 15 was the ‘second Facebook incident’, when you on
17 September 2014, further updated your Facebook account to post a link to one of Kyla’s favourite songs, which you played to her following arguments or violence.
72 Turning to Charges 11 and 12, and also relevant to Charge 15.
73 By mid-September, Kyla had returned to Bolton Street. On a date between 1 and 21 September, she was home alone and you entered the house by climbing through the bedroom window and began to scream at her (Charge 11, aggravated burglary).
74 Both you and Kyla then travelled to Moe, then Belgrave. After that Kyla went to Bolton Street and told you "You were not coming in". You dragged her by the arm inside, and punched her to the side of the face before pinning her on the kitchen bench, grabbing her hair and slamming the side of her face into the bench.
75 You threw her to the floor by the hair and rubbed her vagina with your fingers. You then rubbed her anus with your penis. Kyla cried but you laughed at her.
76 I turn to Charges 13 and 14. On 24 September 2014 at about 2.30 pm, Kyla was lying in bed when she heard the front gate open, then heard her bedroom window open and the blinds move. She ran down the hallway and heard your voice inside the house (Charge 13, aggravated burglary).
77 You grabbed her by the hair, pulled her backwards, screamed at her and called her names. You dragged her back to the bedroom and threw her onto the bed. You covered her mouth because she was trying to scream. You rubbed your fingers roughly on her vagina and rubbed your penis against her vagina. You punched her to the face and the stomach. At that time, Kyla was twelve weeks pregnant.
78 At about 3.00 pm Kyla called her father. Martin and his wife attended and saw bruises to Kyla’s face and neck area. Kyla was then examined by a doctor at Box Hill Hospital at about 7.50 pm and had many superficial abrasions to the base of the right side of her neck, consistent with scratch marks. Further examination by a forensic medical officer at 1.55 am showed multiple bruises and redness on her head and neck and a bruise on her right forearm, multiple scratches on her right foot area and redness on her upper left and right thighs.
79 At about 4.20 pm the following day, Constable Gregory phoned you and requested an interview. You referred to the intervention order and bail conditions that stopped you from contacting Kyla, but said that did not stop her from harassing you. You said that when you were at Bolton Street that day, you did not see Kyla, and the scratches to her were not caused "yesterday". During the interview you became aggressive and began to remove your clothing. Police then observed abrasions to your upper body.
80 Turning to Indictment E13211979.3, attempting to pervert the course of justice. At 4.08 pm on 25 September 2014, approximately 12 minutes before you spoke to Constable Gregory (regarding events of 24 September 2014 to which I have referred), you sent a message to Hanna William via Facebook. That message read "hay i need a huge favor i need you to say I was at your yesterday J”. Hanna replied “No worries I don’t mind back you up about where you were, cos after all, you WERE here … so I’m not lying J”.
81 Hanna thought, at the time, your request sprang from an issue of fidelity between yourself and Kyla. During the record of interview later that evening you told police that "… this is a complete load of shit, I’m gonna call Hanna and have this fucking – cos this – yeah I’m sorry … been at her place since Tuesday, now I’m getting told that I haven’t”. You said you had spent every night with Hanna William since Tuesday, staying at Ascot Vale with her since Monday. You said you left Hanna’s that morning about 7.00 am or 8.00 am to go to Box Hill to see if your mail was there.
82 I return to Charge 15. The intervention order was issued on 12 August 2014. A number of contraventions were relied upon with respect to Charge 15, as detailed in Exhibit A (paragraphs 87 to 116), but I will not further detail those allegations.
83 It is difficult to adequately describe what I regard as your atrocious offending and your complete disregard for Kyla, your then partner. You treated Kyla as if she was nothing more than a punching bag and your sexual offending of her involved violent, humiliating and degrading behaviour and self-interest. The domestic violence in the context of your relationship makes your offending in the charges before me very serious indeed.
84 Kyla, her father and stepmother have suffered considerably as a result of your offending, and I shall return to pass some remarks on that subject shortly.
85 You have pleaded guilty to these charges, and you are entitled to have that fact taken into account in your favour, and I do so. I accept, as I have said, your pleas of guilty to the charges of intentionally causing injury and attempting to pervert the course of justice were entered early, consistent with the submissions made by the prosecutor. The charges on Indictment E13211979.5 to which you also pleaded guilty were at the door of the Court just prior to the third trial commencing, and after the complainant was required to give evidence at a contested committal and at the first trial.
86 I am prepared to accept your pleas of guilty to all the charges before me indicate some remorse for your offending. Beyond that I am concerned about the level of your remorse, in particular regarding Indictment E13211979.5 and the evidence most recently given by Kyla in July 2016 (see transcript pp.26-33). I agree with the prosecution submission regarding that evidence being relative to your remorse, as stated at paragraph 8.6 of the prosecution submissions on sentence.
87 There are a number of aggravating features of your offending, Charge 17 (intentionally cause injury to Martin Becker), attempt to pervert the course of justice, and Charges 10 to 14 inclusive and the elements of Charge 15 on Indictment E13211979.5 were committed whilst on bail.
88 Charge 6 on Indictment E13211979.5 was committed whilst the Family Violence Safety Notice was in operation, and Charges 10-14 inclusive of that same indictment whilst the intervention order was in operation. Further, Kyla was pregnant at the time of your offending on that indictment, Charges 10-15 inclusive. A further aggravating feature was that your offending occurred in the context of domestic violence and in that regard, I refer to the decision of Pasinis v R[6].
[6] [2014] VSCA 97 [53]-[54] and [57]
89 I note also your use of a knife, referrable to Charge 3.
90 You have admitted a prior criminal history which involves, amongst other things, violent-type offending, although I note a lack of any other sexual offending.
91 Turning to your prior criminal history, Mr Lawrence referred to your offences in 2007 in the Children’s Court having involved burglary of a cricket club and a tennis club. In 2008 the offence of burglary related to a Target store, as did the charge of damage property.
92 You next appeared at Court on 12 June 2009 on a charge of recklessly causing injury which you instructed involved you punching your mother.
93 In your appearance on 1 February 2012, the two charges of unlawful assault related to security guards and assault police, I gather occurred after you were taken to the police station. This is, as I understand it, your first sentence of imprisonment/detention.
94 Turning to your offending behaviour before me, Mr Lawrence conceded your offending was serious. He conceded the violence associated with your sexual offending was relevant to my assessment of the gravity of the charged offences, as was the fact that Kyla was pregnant at the time of some of your offending. To describe your offending as serious, in my opinion, is however an understatement.
95 Turning to the offences of aggravated burglary, he urged when assessing the gravity of those offences, your intention when you entered the property in Charge 10 was to steal, and that I should find, relevant to Charges 11 and 13 it was to assault, and not sexually assault, Kyla.
96 He submitted relevant to those three charges you did not force entry, rather opened a window or door, were not carrying a weapon, were alone, and that each burglary was committed during the day. He submitted they were relevant considerations. They are, and I take those matters into account, although note as discussed with our counsel you had knowledge of the faulty window and door through which you gained access.
97 Mr Lawrence conceded aggravated burglary in the context of domestic violence was serious offending, and it is.
98 Regarding the offence of intentionally causing injury, Mr Lawrence submitted your assault was unplanned and without the use of weapons. He conceded there were multiple blows, however the incident was of short duration with no permanent physical impairment to Martin Becker, other than that referred to within the victim impact statement. I am aware of all those matters.
99 Turning to the offence of attempting to pervert the course of justice, he submitted your attempt to create an alibi was spontaneous and unsophisticated, and sent in a format that was easily recoverable. He did, however, concede you persisted with that alibi.
100 The prosecutor, Mr Gyorffy, submitted that non-sophisticated message was, however, all that was necessary to achieve its purpose. It was not planned, but nevertheless what you were trying to do was achieved by it. I agree.
101 Mr Lawrence, in his written outline of submissions and orally before me, referred to your background and history.
102 As I have said, at sentence you are 25 years of age, and your offending occurred when you were 22-23 years of age. You described your early life as markedly unstable and difficult, with you and your brother sexually abused by a neighbour when you were approximately 6 years of age. Your mother was a strict and violent disciplinarian, your father an alcoholic. Your parents separated when you were 7. You were removed by Department of Health and Human Services when 10 and never again lived in the family home.
103 Your education was, not surprisingly, affected by those frequent moves and changes of school. You attained a Year 10 pass then had a limited employment history.
104 You were diagnosed with Attention Deficit Disorder at primary school and treated with medication.
105 You have been a regular cannabis user and heavily since age 16.
106 I was told that in custody you had undertaken counselling and treatment for drug use, alcohol use and anger management, although no certificates were actually provided. You had attained a qualification in welding, coffee making, and a “white card” to enable you to work on construction sites. You instructed you were presently working five days per week in metal fabrications in the prison.
107 There was a chronology prepared by Mr Lawrence for your plea hearing (Exhibit 2), which referred to removal from your mother’s care and being placed in residential units and with a foster family in 2001, living in Carrum Downs. You then attended Rowellyn Park Primary School. In 2004 you were expelled from Carrum Downs Secondary College and in 2006 expelled from Nunawading Christian College. You then attended Berry Street School, Noble Park.
108 In 2007 you were removed from one foster family and placed with another in Burwood East.
109 You were expelled from Caulfield Park Community School in 2007 and by that time you were regularly using cannabis.
110 In 2009 you went to live with your then partner and her mother, but broke up with her in 2010. You then became involved with the courts.
111 You then lived with another partner in Ascot Vale in 2011 and in 2013, were living with another partner in St Albans. It was in that same year you and Kyla met and began your relationship.
112 Mr Lawrence referred to the report of Ms Cidoni, Consultant Psychologist, dated 21 August 2016, and I now turn to that report.
113 Ms Cidoni noted you had not been exposed to family violence by your father as a child, however you described violence and emotional abuse by your mother. You had not had any contact with her following an assault when you were 16.
114 You lived with a foster family in Carrum Downs for a period of five years, however, stole a car that belonged to a member of the family and were placed in secure welfare at Parkville. Between your various placements you were homeless living on the streets and sleeping in train carriages.
115 You met Kyla in mid-2013 and were living with her until July 2014 when the intervention order was issued by police. There is a child of that relationship born in March 2015.
116 You said you had been diagnosed with Attention Deficit Hyperactivity Disorder and prescribed Ritalin when a teenager, although you said you ceased taking Ritalin, and used cannabis.
117 You reported physical abuse whilst in Department of Human Services care at Parkville, and sexual abuse of you when you were much younger, however had blocked details of that from your mind.
118 You said you self-harmed during childhood and had attempted to end your life a few times.
119 You regularly used cannabis from age 16 until your arrest, up to 7 grams a day. You also consumed alcohol when a minor, describing a period of problem drinking from age 18 for six months and of using inhalants ages 14 to 15. You had used ecstasy, but not heroin or methamphetamine.
120 You underwent a period of drug counselling during a previous Community Correction Order however that was not long-term.
121
You said you attended Headspace in Sunshine for a short time from
21 September 2012, your last contact with that service on 22 February 2013. In custody you were receiving a mood stabiliser and Seroquel.
122 Turning to your employment history, you worked manufacturing rock climbing walls at the age of 15 and at Red Rooster when 16 for approximately six weeks.
123 The author concluded your intellectual testing revealed a full-scale IQ of 86.
124 The author noted your confused and disturbed thoughts, grandiosity and lack of insight. Your paranoia was elevated and you had difficulty trusting others. You had some persecutory ideas and believed people would take advantage of you if you let them.
125 Turning to your risk of future sexual violence, your responses placed you within the moderate to high-risk category. You were a victim of child abuse with evidence of substance abuse, suicidal and self-harming tendencies. There was evidence of relationship problems and previous past supervision failures. There was also evidence of past physical harm to victims in your prior criminal history. You also exhibited some minimisation/denial of your offending.
126 In her opinion, you presented as a very disturbed individual with a traumatic history in childhood. You suffered neglect in foster care, and abuse and instability in Departmental care. You depended on substances from an early age with periods of homelessness and transiency from your teenage years. You had been involved in a series of short-term relationships, and apart from two brief periods of employment, had otherwise been unemployed.
127 Personality testing indicated the presence of a psychotic disorder with acute positive symptoms, with evidence they may be drug-induced. There were also distinct signs of borderline personality presentation in that you experienced emotional distress and difficulty relating to others, and self-harming behaviours.
128 Ms Cidoni considered those conditions were chronic, long lasting in nature and operating at the time of your offending. Your abuse of substances (up to 7 grams of cannabis per day upon your self-report) she considered would serve to make you more disinhibited.
129 Your moral culpability, she suggested, would be impaired due to your inability to exercise appropriate judgment and make calm and rational choices (to think clearly). I note however, her reference to the impact of your drug use upon your mental health.
130 In her opinion, you required psychiatric management, professional counselling and participation in a sex offender program to modify your risk when ultimately released into the community.
131 Returning to Mr Lawrence’s written submissions, he urged based on the report of Ms Cidoni that your moral culpability for your offending should be moderated consistent with the principles in R vVerdins & Ors[7]. Further, he submitted your moral culpability would also be moderated as a result of your disadvantaged background.
[7] (2007) 16 VR 269
132 Mr Gyorffy addressed Mr Lawrence’s submissions regarding mitigation of moral culpability relevant to Verdins and disadvantaged background. He accepted you had a very complex personality background, consistent with the background dealt with in O’Neill v R[8]. He however, submitted borderline personality disorder would not enliven the principles in Verdins. Also referring to your disadvantaged background, he referred to Hogarth (paragraphs 26 to 31), and submitted this would not decrease your moral culpability or legal responsibility for your offending. He did however concede your moral culpability could be moderated, consistent with general sentencing principles based on your complex presentation.
[8] [2015] VSCA 325
133 I discussed with counsel “the overlay” of your cannabis use, as Ms Cidoni said your psychotic disorder may be drug-induced, and would likely also further disinhibit you. It would appear you have been, and were, up until your incarceration, based on your own admissions, a heavy user of cannabis. In that regard (drug use) I note Johnston v the Queen[9] referrable to considerations of Verdins.
[9] [2013] VSCA 362
134 In my opinion, conscious also of the decisions of O’Neill and Binse v R[10], following a rigorous examination of the applicability, or otherwise, of Verdins, in my opinion, your moral culpability is not mitigated by Verdins. I do, however, consider it appropriate to mitigate your moral culpability consistent with general sentencing principles due to your health issues. I have also considered the cases of Bugmy v The Queen[11], Marrah v The Queen[12] and DPP v Terrick & Ors[13]. I take into account your disadvantaged background as part of your personal circumstances as described in those authorities.
[10] [2016] VSCA 145
[11] [2013] HCA 37
[12] [2014] VSCA 119
[13] [2009] VSCA 220
135 Mr Lawrence submitted that at 25 at sentence and 22 – 23 at the time of the offending, you were still relatively young and urged the principles in R v Mills[14] case applied.
[14] (1998) 4 VR 235
136 The prosecutor submitted however the applicability of Mills also depended upon the seriousness of your offending. Your offending, he submitted, was very serious and that the fact that it involved violence would downgrade the applicability of Mills, however conceding would not eliminate it. And in that regard he referred to the decision of Azzopardi v R[15].
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigation effects of the offender’s youth.”
[15] (2011] 35 VR 43
137 Similar statements have been expressed in other cases, that is, that the principles in Mills are general propositions, and are not of usual or automatic application. Each case depends upon its own circumstances, including the circumstances of the offence, as well as the offender (see DPP v. Lawrence[16]).
[16] (2004) 10 VR 125
138 In Connolly[17], Coldrey J referred to the principles in Mills and stated that:
"No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence committed (and just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community, may need to be reflected in the sentence imposed."
[17] [2004] VSCA 24
139 In Mills, Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court, and that usually rehabilitation is far more important than general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which I note is not the case with you, although I also note no prior sexual offending history and no prior periods of incarceration/detention.
140 Regarding the prosecution submission that Charges 11 and 13 could be found to be sexual offences for the purposes of the serious sexual offender provisions, Mr Lawrence submitted regarding Charge 11 there was no sexual assault committed and with respect to Charge 13, he submitted the court could not exclude the reasonable possibility that when you entered the property, you intended physical assault of Kyla and not sexual assault.
141 In my opinion, the evidence relevant to Charge 11 does not support beyond reasonable doubt that aggravated burglary involved an intention to sexually assault Kyla. Turning to Charge 13, and I have had regard to the evidence given by Kyla that related to that offending (see transcript pp.482-492 and pp.691-697 in cross-examination). Whilst in my opinion it is highly likely your intention in Charge 13 was to sexually assault Kyla, that is not the test. I am ultimately not satisfied beyond reasonable doubt that it was for a sexual assault, as opposed to assault of Kyla.
142 Turning to your rehabilitation prospects, Mr Lawrence submitted you had yet to undertake programs, in particular, the Sex Offenders Program. You could, he urged, be rehabilitated, and given your young age, such was a relevant consideration when sentencing. I hope you take up and seek out any such courses offered to you whilst in custody.
143 Regarding your prospects of rehabilitation, I accept you are still relatively young at sentence and that your ultimate rehabilitation is still an important sentencing consideration. However, given the seriousness of the offences and your offending, the lack of any real insight into the harm you have caused, or significant remorse on your part, there is little before me to show you have a reasonable prospect of rehabilitation in the future. It is clear that your rehabilitation is yet to commence in earnest.
144 I have, at best, guarded optimism regarding your rehabilitation prospects. You are assessed as a moderate-high risk of sexual reoffending, and I note Ms Cidoni’s reference to your supervision failures, violence in your priors and minimisation/denial of your offending. You will need to undertake appropriate courses in custody to improve your prospects of rehabilitation and upon release will need to avoid use of cannabis to give me any real confidence in your prospects of rehabilitation. Much of that work will need to occur when you are returned to the community.
145 Mr Lawrence conceded a term of imprisonment was the only appropriate disposition, involving a head sentence and a non-parole period. He is correct.
146 The prosecutor, Mr Gyorffy, prepared a written outline of submissions relevant to sentence and addressed those during the course of your plea hearing.
147 Mr Gyorffy referred to your criminal history, involving six court appearances, four in the Children’s Court and two in the Magistrates’ Court. He accurately submitted the most serious previous disposition was a conviction and sentence in respect of a community correction order for twelve months, with community work attached. At that time, you were required to undergo assessment and treatment for drug and alcohol abuse and dependency, and also treatment for anger management. That penalty was imposed at Heidelberg Magistrates’ Court on 1 February 2012.
148 Turning to the serious offender provisions, he submitted, that upon a term of imprisonment being imposed on Charges 1 and 2 on Indictment E13211979.5, you fell to be sentenced as a serious sexual offender in relation to Charges 3 to 8 inclusive, 12 and 14 of that indictment.
149 Mr Gyorffy submitted on charges for which you are declared a serious sexual offender, protection of the community was the principle purpose of sentence and a longer than proportionate sentence may be imposed to achieve that purpose (see s.6D Sentencing Act 1991 (the Act)), although the prosecution was not seeking a disproportionate sentence. I am also of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence. Mr Gyorffy also referred to s.6E of the Act relevant to cumulation.
150 Mr Gyorffy submitted the most serious offences were the aggravated burglaries, Charges 10, 11 and 13. Regarding those offences, Mr Gyorffy referred to the maximum penalty of 25 years’ imprisonment, that they were committed whilst you were on bail, and such being an aggravating circumstance of that offending.
151 He also submitted each had involved your former partner and were committed in frightening circumstances. Each of those offences, he submitted, were extremely serious, requiring the imposition of a substantial term of imprisonment, and referred to decisions including Hogarth v R[18] and other relevant authorities.
[18] [2012] VSCA 302
152 Mr Gyorffy also referred to your offending having arisen out of a failed domestic relationship, which meant general and specific deterrence and protection of the community were dominant sentencing considerations. In that regard, he referred to a number of authorities, including Pasinis v R[19].
[19] [2014] VSCA 97
153 He also submitted each of these three offences were committed while you were subject to an intervention order which was, he submitted, a serious aggravating feature. I agree.
154 Further, the offences were committed against a background of persistent and ongoing violence over a period of approximately ten months, such exemplified by the number of violent uncharged acts, relied upon as context.
155 Mr Gyorffy submitted that whilst your criminal history was modest and had evolved whilst as a young offender, it was significant, as it included many examples of violent conduct. I agree, but I again note no sexual offending and no previous periods of incarceration/detention.
156 Turning to the offence of perverting the course of justice, Mr Gyorffy submitted yours was a serious example of such an offence and was clearly intended to create an alibi to evade detection and conviction. It was sufficiently sophisticated to enlist the help of another willing person to achieve that purpose, and was blatant and calculated. I agree.
157 Turning to the offences of indecent assault, Mr Gyorffy submitted these were serious examples of domestic violence, requiring general and specific deterrence, denunciation, and protection of the community as the dominant purposes of sentencing, noting many of the charges attracted serious sexual offender classification.
158 Turning to the offence of persistent contravention of intervention notices and orders, Mr Gyorffy submitted your offending was also serious, showing your persistent disregard for the law. I agree. General and specific deterrence, he submitted, were the dominant sentencing purposes in respect of each of those offences.
159 I have also taken into account submissions by both counsel, and have, consistent with that discussion, reduced the sentence I would otherwise impose on Charge 9, no such reduction relevant to Charge 15.
160
Mr Gyorffy submitted you had shown little or no remorse for your offending, evidenced, as I have previously said, by the recent voir dire involving Kyla on
11 July 2016, which reflected he said, your concerted effort, together with a friend, to pressure Kyla into withdrawing her allegations. It also disclosed her deeply conflicted position and the added anguish that these proceedings have brought upon her. I agree, and discussed this in some length with both counsel.
161 Referring to the victim impact statements, Mr Gyorffy referred to authorities that considered the general effect of family violence on women. He submitted, and I agree, the sentiments expressed by Kyla in her victim impact statement were consistent with what you would expect.
162 Turning to factors in mitigation of your sentence, it was accepted by the prosecution your pleas of guilty to the assault on Martin Becker and attempting to pervert the course of justice were indicated at an early time, and you are entitled to a substantial discount on those charges. I agree as I have said.
163 Regarding your offending involving Kyla, her father and stepmother were required to give evidence at the contested committal hearing and, also in the first trial, and thus had to relive your offending behaviour. You have, however, saved a further trial relevant to Kyla, and there is utilitarian benefit of your pleas of guilty to these charges warranting an appropriate discount.
164 Mr Gyorffy submitted there was a risk upon your release, given your entrenched period of offending over approximately ten months, that there was nothing in the report of Ms Cidoni to "anchor on" regarding your future rehabilitation. Ultimately, he submitted yours was inappropriate behaviour by a male manipulating and totally disregarding his female partner. Mr Gyorffy also submitted you did pose a risk to the sexual safety of one or more persons, or of the community, and that the Sexual Offenders Registration Act order should be made.
165 I received three victim impact statements which I discussed in detail with counsel. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks. I have, however, read each statement and take into account and the admissible parts, of course, of them.
166 From Kyla dated 18 August 2016. She described from the first assault that she felt her world spiralling out of control very quickly. She lost sense of herself and you beat down her self-esteem. Each day she walked on eggshells in her own home and quickly became filled with fear and sadness. She was too scared to tell her parents what was happening.
167 After every abuse, you manipulated the situation until she felt she was the one to blame. She learnt to cope. She was untrusting of everyone and everything around her. The sexual assault was an invasion of her body. She had difficulty having physical contact with others.
168 When she found out she was pregnant, she decided to leave you for the sake of her unborn child. That experience alone destroyed her.
169 She described her fear following the first time you were arrested, remanded then released on bail, and that you came back to her again.
170 When she finally spoke about your sexual offending, she did not have anything other than the clothes she was wearing. She became homeless and lived between refuges. She had only recently managed to obtain stable housing.
171 Your offending affected her daily and she now suffered with Post-Traumatic Stress Disorder. Her symptoms included extreme paranoia, nightmares, crying, feeling disorientated and scared. She had flashbacks of you which placed her on constant alert. She had to see a psychologist twice a week to keep functioning. Studying was too much for her. There were constant reminders of your offending against her in her daily life. She no longer felt safe and was unable to do simple things. She could not plan ahead and remained fearful of you.
172 In Pasinis the Court acknowledged the devastating impact upon a victim who was the recipient of domestic violence:
“Historically, perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
"The effects of family violence are now well-documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case [referring to Pasinis], it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable. This phenomenon was reflected in the behaviour of Kyla. [Going on from Pasinis], victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long-lasting psychological trauma."
173 Kyla’s victim impact statement reflects the adverse physical and emotional effects upon her of your offending, and your repeated violence towards her when offending in the sexual way described in each of the indecent assault charges before me.
“General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.”
174 There was also a victim impact statement from Martin Becker, sworn 18 August 2016. He described the effects of your assault upon him. He had physical scars on his mouth and upper lip. He was no longer outgoing and often withdrew from people due to his inability to trust. He had a deep-set fear and anxiety this would happen again. He had low self-esteem and an inability to hold down a job (although as discussed with counsel, the duration of such as a direct result of your offending against him could not be defined with accuracy).
175 Returning to the victim impact statement of Martin, following a luncheon adjournment during your plea hearing the prosecutor had obtained further instructions from Martin regarding his employment following your offending. He commenced a job six days after your assault, tried that for four months, but could not deal with the public in that sales and marketing job. With counselling he was able to commence study part-time and approximately four weeks prior to your plea hearing, he commenced work as a self-employed delivery driver on a part-time basis. He described a loss of income due to the reduction in his salary as a delivery driver, compared with the employment in sales and marketing.
176 There was a victim impact statement from Angela Becker, sworn 18 August 2016. She described the effects of dealing with the assaults upon both Kyla and Martin Becker. When she saw Kyla with bruises on her face, she felt very angry. She had to deal with Kyla’s physical injuries and the psychological effects of your manipulation of her emotions. She felt unable to keep Kyla safe, which has led to her feeling very depressed. She described the negative impact upon her life with her husband following your assault upon him on 24 August 2014, including his inability to be employed, and that had created financial stress for the family. Due to the time that she has had to spend looking after family matters, her career had also suffered not being able to concentrate on her PhD. Her husband found it difficult being with people or in crowds, and that had impacted upon their social life.
177 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). However I am conscious I must not allow the effects upon a victim to swamp the sentencing process.
178 A number of authorities have also referred to the notion of social rehabilitation including DPP v Toomey[20] in which His Honour Vincent J citing DPP v DJK[21] (allowing for the factual differences, of course, in those cases to this before me), stated regarding victim impact statements:
“With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been ultimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created, and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with, or even attribute significance to, the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[20] (2006) VSCA 90
[21] (2003) VSCA 109 [17] and [18]
179 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
180 I note the seriousness of your sexual offending of Kyla in the context in which it occurred, being a domestic violence situation. Also the charges of aggravated burglary and statements that have been made by the Court of Appeal recently in Hogarth. See also Anderson v The Queen[22] and DPP v Meyers[23].
[22] [2014] VSCA 255
[23] [2014] VSCA 314
181 Turning to the offence of attempting to pervert the course of justice.
182 The courts have repeatedly referred to the serious nature of such a charge to which you have pleaded guilty. It is conduct which undermines and threatens the administration of justice. Such offending is therefore viewed very seriously by the courts. There are degrees of gravity involved in this type of offending, see DPP v Ayden & Kirsch[24] cited in R v Rogerson[25]. I accept there are countless gradations of gravity, and also therefore the level of offending. All the circumstances of the particular case under consideration must be taken into account, and I have.
[24] Vic CCA, 3/5/05
[25] (1992) 174 CLR 268 at 280
183
Turning to the charges of persistent contravention of a Family Violence Safety Notice (Charge 9) and persistent contravention of a Family Violence Intervention Order (Charge 15), in the Second Reading speech on
15 November 2012 Attorney-General Mr Clark regarding the Justice Legislation Amendment (Family Violence & Other Matters) Bill 2012, stated "Violence against women and children is unacceptable in any form and under any circumstances" (p.5075).
184 And further in that speech, he stated that
“The new indictable offences signal the Government’s determination to deter perpetrators for their behaviour and bring about change to that behaviour. The new offences will enable courts to impose a higher maximum penalty when sentencing offenders for such contraventions. The offence (of persistently contravening conditions of a Family Violence Intervention Order and Family Violence Safety Notice) will target cases where the respondent has persistently flouted the law and showed complete disregard for the conditions of [those orders]. It will ensure when courts sentence those offenders, the court will be aware of the context and persistent nature of their offending."
185 There is also the need for specific deterrence when sentencing you. Whilst I accept that you do not have any prior criminal history for sexual offending, your offending before me happened on a number of occasions (not once) and over a considerable period of time (approximately ten months). In addition, you were not deterred from your offending by court orders, specifically a Safety Notice or Intervention Order, nor by being on bail, nor by police attendance at your home.
186 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am concerned about that, based on the report and opinions of Ms Cidoni. Your ongoing drug use will also need to be addressed, as will your anger.
187 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
188 Mr Lawrence referred to totality when sentencing you. Whilst I am aware of the relevance of that principle when sentencing, I also note RHMcL v R[26], in which the court cautioned against "compression" of sentences when sentencing a serious sexual offender. That authority was referred to with approval in DPP v Dalgleish[27], see also the reference in Dalgleish to Gordon v R[28], and most recently in the last few weeks, the decisions of DPP v Granata[29]. In sentencing you, in applying the principle of totality, there is of necessity, some compression.
[26] (2003) 203 CLR 452
[27] [2016] VSCA 148 [58] and [60]
[28] [2013] VSCA 343
[29] [2016] VSCA 190, [124]-[129]
189 In my opinion, the magnitude of your offending demands a sentence of some substance.
190 As you are to be sentenced as a serious sexual offender on Charges 3-8 inclusive, and Charges 12 and 14, for the sake of clarity, I will announce those sentences in terms of concurrency, as the legislation requires that in those matters, cumulation applies unless ordered otherwise, which reverses the normal prescription that concurrency applies unless directed otherwise.
191 Taking into account all relevant sentencing considerations, I sentence you as follows.
On Indictment E13211979.5:
192 On Charge 1, you are convicted and sentenced to 14 months’ imprisonment.
193 On Charge 2, you are convicted and sentenced to 14 months’ imprisonment.
194 On Charge 3, you are convicted and sentenced to 18 months’ imprisonment.
195 On Charge 4, you are convicted and sentenced to 18 months’ imprisonment.
196 On Charge 5, you are convicted and sentenced to 18 months’ imprisonment.
197 On Charge 6, you are convicted and sentenced to 18 months’ imprisonment.
198 On Charge 7, you are convicted and sentenced to 18 months’ imprisonment.
199 On Charge 8, you are convicted and sentenced to 18 months’ imprisonment.
200 On Charge 9, you are convicted and sentenced to 5 months’ imprisonment.
201 On Charge 10, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
202 On Charge 11, you are convicted and sentenced to 3 years’ imprisonment.
203 On Charge 12, you are convicted and sentenced to 18 months’ imprisonment.
204 On Charge 13, you are convicted and sentenced to 3 years’ imprisonment.
205 On Charge 14, you are convicted and sentenced to 18 months’ imprisonment.
206 On Charge 15, you are convicted and sentenced to 9 months’ imprisonment.
207 On Indictment E13211979.1, on Charge 17 (intentionally cause injury), you are convicted and sentenced to 6 months’ imprisonment.
208 On Indictment E13211979.3, Charge 1 (attempting to pervert the course of justice), you are convicted and sentenced to 9 months’ imprisonment.
209 I declare that you are sentenced as a serious sexual offender on Indictment E13211979.5 Charges 3, 4, 5, 6, 7, 8, 12 and 14.
210 I order the following in relation to cumulation and concurrency:
211 I direct Charge 13 on Indictment E13211979.5 is the base sentence;
212 I direct that 4 months of Charge 1 be served cumulatively upon Charge 13.
213 I direct that 4 months of Charge 2 be served cumulatively upon Charge 13.
214 I direct that 12 months of Charge 3 be served concurrently and 6 months cumulatively upon Charge 13.
215 I direct that 12 months of Charge 4 be served concurrently and 6 months cumulatively upon Charge 13.
216 I direct that 12 months of Charge 5 be served concurrently and 6 months cumulatively upon Charge 13.
217 I direct that 12 months of Charge 6 be served concurrently and 6 months cumulatively upon Charge 13.
218 I direct that 12 months of Charge 7 be served concurrently and 6 months cumulatively upon Charge 13.
219 I direct that 12 months of Charge 8 be served concurrently and 6 months cumulatively upon Charge 13.
220 I direct that 2 months of Charge 9 be served cumulatively upon Charge 13.
221 I direct that 10 months of Charge 10 be served cumulatively upon Charge 13.
222 I direct that 12 months of Charge 11 be served cumulatively upon Charge 13.
223 I direct that 15 months of Charge 12 be served concurrently and 3 months cumulatively upon charge 13.
224 I direct that 15 months of Charge 14 be served concurrently and 3 months cumulatively upon Charge 13.
225 I direct that 4 months of Charge 15 be served cumulatively upon Charge 13.
226 Turning to Indictment E13211979.1, I direct that 2 months be served cumulatively upon Charge 13 on Indictment E13211979.5.
227 Turning to Indictment E13211979.3, I direct that 4 months be served cumulatively upon Charge 13 on E13211979.5.
228 For clarity the orders for cumulation are upon each other and upon the base sentence.
229 That results in a total effective sentence of 10 years’ imprisonment, and I direct you serve a period of 7 years and 6 months before you are eligible for parole. Have a seat.
230 In determining the length of the non-parole period I note the observations of His Honour Callaway JA in R v VZ[30] that the non-parole period cannot be fixed unthinkingly by some such method as taking two years or one-third or one-quarter off the head sentence. His Honour referred to three relevant factors to take into account: the penal element of the non-parole period; where general or specific deterrence is important that objective should not be undermined by an unduly short non-parole period; and the prospects of an offender’s rehabilitation.
[30] (1998) 7 VR 693
231 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty to the charges on that indictment, I would have sentenced you, all up, on those three indictments, to a term of imprisonment of 14 years, and set a non-parole period of 11 years.
232 Pursuant to s.(18)(4) Sentencing Act 1991 I declare, by way of pre-sentence detention, you have spent 717 days in custody (up to and including yesterday, 1 September 2016) by way of pre-sentence detention, and I direct this be entered into the records of the court once checked.
233 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of your offending and your prior convictions. I must advise you the authorities may use reasonable force in order to obtain that sample.
234 Turning to the Sex Offenders Registration Act 2004 (the Act), Mr Lawrence urged the making of such an order was not mandatory, and he is correct (s.11 of the Act). He submitted that I must be satisfied you would, upon release, pose a real risk to the sexual safety of one or more people in the community. He submitted I should not be so satisfied, particularly as you were young and yet to undertake programs and interventions to address your sexual offending and mental health.
235 Mr Gyorffy submitted your protracted violence in the context of your relationship with Kyla and disregard for court orders and intervention of police and others, required an explanation. That a plan for preventing such conduct in the future was absent, and there was no comfort in the conclusion such similar behaviour would not recur when you were in other relationships. He submitted you posed a risk to the sexual safety of one or more persons in the community and the order should be made.
236 The Act was discussed in DPP v Cartwright[31], and the two-stage process in Bowden v R[32]. Your plea of guilty to these sexual charges (indecent assault) satisfies the first stage.
[31] [2015] VSCA 11
[32] [2013] VSCA 382
237 I must then determine whether, in all the relevant circumstances, to make a registration order.
238 I must be satisfied that you pose the requisite risk, being a risk to the sexual safety of one or more persons or of the community. The risk must be assessed as real and the likelihood of that risk being present upon your ultimate release.
239 I must also be mindful of the restrictions placed upon you if subject to the Act.
240 In determining this application I note the conclusion by Ms Cidoni that you are a moderate to high risk for future sexual violence, that you have prior offending involving violence (although not sexual violence or offending), your lack of remorse, minimisation/denial of your offending, the issues you need to successfully address including your drug use and your inability to appreciate the severity of your behaviour and impact upon Kyla.
241 I am satisfied beyond reasonable doubt you pose the requisite risk. I make the order and it will be for life.
242 Following this sentencing, my associate will approach you and ask you to sign, to acknowledge receipt of documents that tell you about the Sex Offender Registration Act. You are not being asked if you want to be on the Register, I have determined that, rather you are simply acknowledging paperwork. But if you do not want to acknowledge it, that is fine.
243 Now, first of all, mathematics?
244 MR LAWRENCE: I think Your Honour's correct.
245 MS MOLETA: I agree, Your Honour.
246 HER HONOUR: Well I hope so. Did you get them right as far as - you came up with the same figures?
247 COUNSEL: Yes, Your Honour.
248 HER HONOUR: That is fine.
249 MR LAWRENCE: I came up with 120 months in total, which is ten years, yes.
250 HER HONOUR: It is, but I want you to - just so long as you have checked them and you do not want help with the maths, that is all right.
251 MR LAWRENCE: No, Your Honour.
252 HER HONOUR: What about the PSD? Is that right?
253 MR LAWRENCE: 717 is correct, Your Honour.
254 HER HONOUR: As of yesterday?
255 MR LAWRENCE: Yes.
256 HER HONOUR: Up to and including yesterday.
257 MR LAWRENCE: Yes.
258 HER HONOUR: All right, well Ms Jackson is just going down the back of the room to - I will check those - there was a date a little earlier, 24 August, I have just got to double check that date in relation to the assault on Martin Becher, but I will fix that up. Could have been a typo at this end.
259 MS MOLETA: Your Honour, may I file an amended notice relating to summary offences?
260 HER HONOUR: Are you wanting to withdraw some, are you? Or something?
261 MS MOLETA: That is correct, Your Honour, there are six charges.
262 HER HONOUR: So you need to file the - do you know about this, I hope?
263 MR LAWRENCE: I do, Your Honour.
264 HER HONOUR: Well that is helpful. So you are filing the summary charges that were outstanding, is that right?
265 MS MOLETA: Yes, Your Honour.
266 HER HONOUR: So this is an amendments notice relating to summary charges which we are now filing over. It is dated 1 September 2016, and therefore you are withdrawing the summary charge number - is this correct? Fifty-seven, 83, 84, 99, 127 and 128?
267 MS MOLETA: That is correct, Your Honour, and those charge numbers have been confirmed by your associate.
268 HER HONOUR: Great, you have checked those? You are happy with those?
269 MR LAWRENCE: I am happy with those, Your Honour.
270 HER HONOUR: You agree with them, I should say?
271 MR LAWRENCE: Yes.
272 HER HONOUR: All right, so as far as those are concerned, they are now withdrawn.
273 MS MOLETA: As Your Honour pleases.
274 HER HONOUR: Does that take care of all other matters?
275 COUNSEL: Yes, Your Honour.
276 HER HONOUR: Right. Ms Jackson, he is not being asked if he wants to be on the order, this is just acknowledging receipt of the paperwork. I have made the order. You will have to see your client downstairs, Mr Lawrence, I am afraid. I have got other matters in the wings which are a bit time-critical, I am sorry about that. All right, so is there anything further in this matter? No?
277 MR LAWRENCE: No, Your Honour.
278 HER HONOUR: Can I thank counsel for your assistance. Thank you, remove the prisoner please.
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