Director of Public Prosecutions v Russo

[2023] VCC 906

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

SEXUAL OFFENCES LIST

Case No. CR-20-01845
CR-22-01847
CR-20-01848
Indictment No. K13134073.A
K12888157
K13062299

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL RUSSO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	6 March 2023
DATE OF SENTENCE:	6 June 2023
CASE MAY BE CITED AS:	DPP v Russo
MEDIUM NEUTRAL CITATION:	[2023] VCC 906

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Conduct endangering person – Rape – Sexual assault – Sexual assault by compelling sexual touching – Attempted robbery – Complex cognitive and emotional disability – Serious sex offender

Legislation Cited:      Crimes Act 1958; Criminal Procedure Act 2009; Sentencing Act 1991; Sex Offender’s Registration Act 2004

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571

Sentence:                  20 years and 4 months’ imprisonment with a non-parole period of 17 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Warren	Solicitor for the Office of Public Prosecutions
For the Offender	Ms T. Skvortsova	SKLQ Lawyers

HER HONOUR:

1Joel Russo, you have pleaded guilty before me to one charge of conduct endangering serious injury; two charges of rape; three charges of sexual assault; one charge of sexual assault by compelling sexual touching and one charge of attempted robbery. 

2These charges were contained in Indictment number K13134073.A (Indictment number 1).  Charges 2 and 3 are rolled up charges, charge 2 comprising four separate acts of penile/vaginal rape penetration and charge 3 comprising two separate acts of digital/vaginal penetration.

3You also pleaded guilty to one charge of Attempted Theft contained in Indictment number K12888157 (Indictment Number 2) and an associated rolled up summary charge of possessing a controlled weapon, covering the possession by you of two such weapons on one occasion.

4Finally, you pleaded guilty to one charge of Criminal damage contained in Indictment number K13062299 together with summary charges of damaging property and committing an indictable offence on bail.

5The summary charges were uplifted to be heard on the plea in this Court pursuant to S145 of the Criminal Procedure Act 2009.

Offending

6The facts underlying your offending are as follows, beginning with the charges contained in Indictment number 1.

7At the time of this offending on 3 and 4 December 2019, you were twenty-five years old, unemployed and had been living for about three-and-a-half months at Francis House in Coburg, which is assisted-living accommodation for intellectually disabled offenders.  At about 6.20pm on 3 December 2019, you left Francis House, telling a residential support worker you were heading out.  At 7.24pm and 7.26pm, you texted an outreach worker and Francis House advising you would not be home that night.  Soon after, you approached the victim of the sexual offending, who I shall refer to as “the complainant”, as she was walking along Merri Creek Trail towards Joe’s Market Gardens, just north of the Harding Street pedestrian bridge. 

8The Complainant, a 25-year-old university student had left her home at about 6.30pm to a walk along the Merri Creek Trail, starting at Artherton Street in East Brunswick.  She had walked north along the trail for about thirty minutes, listening to music on her phone, until turning back on realising her phone battery was going flat. You came from behind her, put your hand on her right buttock and told her to come with you.  You grabbed at her as she refused and started screaming.  The complainant ran away from you, but you caught up with her and she then tried kick you in the groin.  Grabbing her around her upper body, you dragged her down the steep embankment to Merri Creek, which runs about 4 metres lower than the path.  The complainant continued to scream and tried to break free, clawing at the ground as you pulled her but could not get free. 

9At the Creek, you threw her down onto her stomach telling her to “shut up. Stop screaming”. You lay on top of her pushing her head under the shallow water, forcing her to turn her head to the side to breathe.  You then pushed her head under water, holding her there for about thirty seconds, with your hands around her neck.  The complainant believed she was going to pass out and your acts placed her in danger of serious injury.  These actions underlie Charge 1 on the Indictment, reckless conduct endangering serious injury.   

10You then released her head, and the complainant went on her knees in the creek. You said to her, “I’ll let you live if you let me fuck you.” She tried to say “let me live” but you told her to shut up.  The complainant sat up against the creek embankment and you pulled down her leggings and underwear, and your own pants. Feeling she could not escape or stop you; the complainant took off her right running shoe and the right leg of her outfit and underwear, also hoping that if you became violent again this would make it easier to get away.  You stood in the water between her legs and inserted your penis into her vagina, penetrating her for about a minute. It was not fully erect, and you did not wear a condom.  These actions underlie part of Charge 2, rape.  You removed your penis and put your fingers in the complainant’s vagina with a force she described to police as brutal.  You stabbed over the outer parts of her vagina with your fingers and these actions underlie part of Charge 3, rape. 

11Although the complainant was afraid you would kill her you asked her if she liked what you were doing. She replied no, and you told her to just say yes, that you wanted her to orgasm and that if she did so ten times, you would let her go.  You removed your fingers and again inserted your penis into the complainant’s vagina, these actions also underlying part of Charge 2, rape.  Again, your penis was only partially erect. Again, you then removed it, and roughly re- inserted your fingers into her vagina as before. You apologised to her as you did this.  These actions also underlie part of Charge 3, rape.  As you digitally penetrated the complainant’s vagina you began licking around it, and this action underlies Charge 4 on the Indictment, sexual assault.  You then picked up a muddy stick, using it to touch the complainant’s vagina and causing her pain.  She told you that it hurt. She later told police she did not think you were deliberately trying to hurt her with the stick but seemed convinced that you were giving her pleasure.  She said she also had the impression you knew she did not want to be there and did not want this to happen.  These actions underlie Charge 5 on the Indictment, sexual assault.  You dropped the stick and told the complainant to rub her vagina, which she did for about a minute.  These actions underlie Charge 6, sexual assault by compelling sexual touching. 

12The complainant could hear people walking along the Merri Creek Trail above and you pushed her into the embankment bushes told her to be quiet. By then it was becoming dark. You told the complainant to bend over, which she immediately did standing in the water and, resting her arms on the embankment.  You touched her anus with your penis, this action underlying Charge 7 on the Indictment, sexual assault.  You then pushed your penis into the complainant’s vagina from behind, and this action underlies part of Charge 2, rape.  You said to her, “I’m almost there. Keep going. Then we can go.”  During the offending, you made the complainant kiss you, lifted her t-shirt and sports bra, and kissed her breasts and the side of her waist.

13The complainant said she was cold, and you gave her your hoodie, telling her to put it on, then again inserted your penis into her vagina, this action comprising part of Charge 2, rape.  You then told her to call her friends to say she was alright. To avoid further sexual assaults and find an opportunity to get away the complainant she said she would do this once the two of you had left and suggested going somewhere dry together because she was cold and wet. Eventually you agreed and you and she climbed up to the Trail, where the complainant dressed herself and gave you back your jumper.  She planned to walk with you to the corner of Nicholson and Blyth Streets, and then run away from you into the nearby Lomond Hotel. Then while walking, the complainant saw a well-lit side street and turned west along Harding Street, then south on Nicholson Street, where it was busier and where she remembered there was a nearby McDonald’s restaurant.  You ordered the complainant to hold your hand while you walked and, on the way, asked her if she would tell police.  The complainant replied no, and that she just wanted to go home, and you said, “but you enjoyed it didn’t you? You came.”  The complainant said she had not. You then asked if she would visit you in jail and she said no.  You said, “sorry for raping you, I’ve ruined your life, haven’t I?”. 

14It was now about 10pm and as you approached McDonald’s the complainant tried to pull you towards the restaurant. You tried to pull her back, but she yelled, and you stopped. The complainant grabbed a metal pole at the entry to McDonald’s and told you to go home. After loitering in the entryway for about a minute, you ran off towards the intersection of Albion and Lygon Streets. 

15At about 1.00am on Wednesday, 4 December 2019, still in the same clothes you wore when assaulting the complainant. you went into the Coles Express on the corner of Lygon and Elgin Streets in Carlton. You pulled your hoodie over your head and asked the attendant to open the till, but he refused.  You said you needed the money because your mother was in hospital. The attendant said you were being recorded and activated the store alarm.  You shouted, “I have a knife on me, and I’ll stab you” and reached over the counter to pull out the till but the attendant pushed you away, and a customer in the store, who saw what was happening, came up.  You stayed in the store as the attendant called 000 and asked for cigarettes. The attendant told you the smokes were locked up and you left.  These actions underly Charge 8 on the Indictment, attempted robbery.

16As soon as you left the complainant ran into McDonald’s and asked that someone call police. A customer called 000 and the complainant said she had been raped, and that you had tried to kill her.  She was wet and dirty, had twigs and leaves in her hair and was crying and extremely distressed

17Police arrived at McDonald’s at about 10.25pm and the complainant gave details of the sexual assaults and told police the man who raped her had dropped his mobile phone in the creek. She provided a description of you and your clothing and helped identify the location of the offending on Google maps.  She was then taken by ambulance to the Royal Women’s Hospital, where she was forensically examined. Vegetation was on parts of her body, she had scratches and abrasions on her stomach, left breastbone area, upper buttocks, and right lower back.  She had reddening on the right side of her neck and her left buttock, hips, and arms. Dirt was found inside her vagina, which also suffered an abrasion and a bruise. Forensic samples were taken, and police attended Merri Creek, where they found an area of disturbance in the grass and foliage on the embankment, and a white mobile phone. 

18At 1.12am on December 4, soon after the attempted robbery was reported, police arrested you at the corner of Grattan and Lygon Streets in Carlton. and you were taken to the Melbourne West police station.  CCTV footage from Coles Express depicted you and your actions in the store.   At about 3.30am, police investigating the sexual assaults were advised you were in police custody, were wet, had mud on your clothing and apparently matched the description given by the complainant, and soon after your clothing was seized

19The next morning, a forensic medical officer conducted an examination of you. Dirt and debris were found in your hair and under the foreskin of your penis, and you had multiple dot and linear abrasions over your lower back, knees and thighs.  DNA samples were obtained. You were formally interviewed from about 6 pm on 4 December. You denied the rapes or meeting the complainant on Merri Creek, claiming you had been walking the streets and playing the pokies. You claimed you had been assaulted and robbed by a man and a woman who stole your mobile phone and said you could not remember walking to McDonald’s with a woman.  You also denied wearing the clothes you were arrested in.  Forensic analysis of DNA samples taken from you and the complainant provided extremely strong evidence for the proposition that you contributed to DNA found on swabs taken from the complainant’s body.  DNA analysis of swabs taken from your body strongly supported the presence of the complainant’s DNA in samples taken from your penile shaft and your right fingernail.  Police obtained CCTV footage of you and the complainant walking along Nicholson Street from about 9.49pm.

20You were remanded in custody.    A five-day committal involving cross-examination of nine witnesses, but not the complainant, was conducted on 18 December 2020 and you were committed for trial, entering a plea of not guilty.  Defence counsel ultimately made legal challenges to the admissibility of the forensic material obtained by police, both in this court and the Court of Appeal. The matter was ultimately listed to commence as a trial on 26 October 2022.  On 7 September 2022, you offered to plead guilty to the charges now before the Court, which was accepted by the prosecution on 4 October 2022 and on 12 October 2022 you were arraigned and pleaded guilty.

21The maximum penalty for rape is imprisonment for twenty-five years. The maximum penalty for sexual assault and for sexual assault by compelling sexual touching is ten years’ imprisonment. The maximum penalty for attempted robbery is ten years imprisonment. Pursuant to s5(2G) of the Sentencing Act1991, sentences of imprisonment must be imposed on the rape charges unless relevant statutory exceptions apply, which it is accepted they do not in this case.  The standard sentence for rape is ten years’ imprisonment.  Because of your previous offending to which I will later refer, you are to be sentenced as a serious sexual offender on Charges 2,3,4,5,6 and 7.

22A Victim Impact Statement was received from the complainant.  Before referring to the contents, mention should be made of the exceptional courage, strength and sagacity shown by her during this horrifying attack.  It is clear, in my view, that throughout it all, the complainant somehow managed to keep her wits about her and make decisions during the violent sexual onslaught you unleashed upon her, which probably saved her from even more serious injury, and was able, to persuade you to go to an area where she could escape and seek help.  That she was able to maintain such presence of mind in this nightmarish scenario was remarkable. It may give her little comfort, but it is my view she deserves recognition and high praise for the intelligence and capacity she displayed in the terrible circumstances she found herself in.

23Unsurprisingly, the complainant’s Victim Impact Statement makes for utterly distressing reading.  An entirely innocent young woman who simply went out for a walk on a still-light summer’s evening on a well populated trail, she now experiences depression, anxiety, Post-Traumatic Stress Disorder (“PTSD”), low mood, constant emptiness, disconnection, lack of energy, panic, or startle response if anyone touches her, and experiences of disgust, hurt, shame, anger, fear and frustration whenever she thinks of the rape.  She is jumpy, hypervigilant, experiences significant startle response during ordinary tasks like working, shopping, or driving, has difficulty with focus and memory, had significant difficulty completing her university degree, struggled with attendance for a time after the rape, and experiences significant anxiety and high alert if she sees a man in the street looking at her. She no longer enjoys walking in nature and completely avoids the area where she was so violently assaulted.  She stated:

“There is no way I can accurately convey the enormous weight of these burdens I carry with me every single day.  There is no limit to the anger I feel knowing that the most life-threatening risk I took was to go for a walk alone and to ‘be a woman’.”

24It can only be hoped that the complainant finds herself capable of taking advantage of every assistance the Victims of Crime Scheme can offer her, particularly around trauma-informed therapy, including EMDR.  There is no doubt this horrendous sexual assault has caused, and will continue to cause for the foreseeable future, extreme anguish, and distress to this courageous young woman.

25I now turn to the facts underlying the offending charged in Indictment 2 – Attempted Theft and the associated summary charge of possessing a controlled weapon.

26Following an anonymous call on October 15, 2019, at about 11.30 pm police attended at Lygon St East Brunswick where they found you on the footpath using a pair of pliers to cut a chain securing a bike to a bike rack on the footpath. They told you to stop and step away but you kept applying the pliers saying it was a friend’s bike. Eventually you admitted you were in fact trying to steal the bike which was worth about $500. These actions underlie the charge of Attempted theft.

27Police then conducted a pat down search of you discovering two sliding box cutter knives in your right pocket. These are controlled weapons, you had no lawful excuse for possessing them and these circumstances underlie a rolled up charge of possessing a controlled weapon.

28The maximum penalty for Attempted theft is ten years imprisonment. The maximum penalty for possessing a controlled weapon is one yea imprisonment.  

29Finally, I turn to the offending underlying Indictment 3 and the associated summary charge. On November 23, 2019, you were being held as a patient in a psychiatric ward at the Royal Melbourne Hospital when you picked up a large wooden table and began to smash a window. You continued hitting the glass while staff members called on you to stop. These actions underlie the charge of Criminal Damage. Security staff forced you to the bed where you were restrained at the time of this offending you were on bail for the October 15 offending. These circumstances underlie the charge of Criminal Damage and associated summary charge of committing an indictable offence on bail.  

30The maximum penalty for Criminal Damage is 10 years imprisonment and the maximum penalty for committing an indictable offence on bail is 3 months imprisonment.

31Early pleas were entered to the charges encompassed by Indictments 2 and 3 and the associated summary charges.

Personal History

32I now turn to your personal circumstances.

33You are twenty-eight years old and were twenty-five at the time of this offending.  You endured a childhood and adolescence of the upmost deprivation.  You were born to a drug-dependent mother, who used drugs while pregnant with you and you were born eight weeks premature, weighing just over 2 kilograms.  Because of severe environmental neglect, physical and emotional abuse you were permanently removed from your parents’ care when you were only four. You have had only minimal contact with your mother ever since. Under the guardianship of the State, you were placed in several foster homes and government run residential care units in New South Wales and Victoria. You had short stays along the way with your father, who was schizophrenic, and in and out of jail. He and your stepmother were physically and emotionally abusive of you but you would run away to them when absconding from State care, staying with them  until you were again removed due to abuse. In foster care, you were physically and sexually abused, beginning when you were only seven at the hands of an older teenage girl.  In one foster care placement, you were starved and physically abused, and although you reported the experience to DHHS, you were returned to the placement, from which you then repeatedly absconded.

34You displayed behavioural issues as soon as you attended primary school and were asked to leave. At age six you were diagnosed as suffering an intellectual disability, eventually attending a special school in Frankston, from which you constantly truanted to spend time with associates you met in residential care. Ultimately, and perhaps inevitably, at age sixteen you were introduced to drugs, in particular methamphetamine or Ice and alcohol. They have been a problem for you ever since.

35You left special education at age seventeen, part way through Year 10.  You then had short stints working with your father in concreting and roof tiling when he was not in prison or you in youth detention.  You also reported sexual abuse by a staff member at the Parkville Youth Justice Centre, during one of your detentions there.

36You began offending with other drug-using peers and have spent most of your life in juvenile detention or adult custody ever since. In June 2012 you were sentenced to detention of two years and four months in a Youth Justice Centre on three charges of armed robbery, two charges of robbery, a charge of attempted robbery, a charge of aggravated burglary, attempted theft of a motor vehicle, intentionally damaging property, and theft of a motor vehicle.  In December of that year, you were ordered to be detained for two months in a Youth Justice Centre on charges including theft of a motor vehicle, unlicensed driving, indecent assault, and careless driving.  In May 2013, you received a further two months’ detention in a Youth Training Centre for unlawful assault.  You were sentenced by the Melbourne County Court on 26 July 2013 on a charge of armed robbery to twenty-six months detention in a Youth Justice Centre.  In 2014, you were placed on an undertaking to be of good behaviour on charges of shop theft and criminal damage.

37Most concerningly, on 28 April 2015, you were sentenced by this court to a total effective sentence of five years imprisonment, with a non-parole period of three years, on charges of rape and attempted armed robbery. The sentencing remarks of the sentencing Judge His Honour Judge Hicks of this Court, which I have read, revealed disturbing similarities to the sexual offending before this court.  Then aged 20, you were seen loitering around female toilets and following and approaching women. Eventually you grabbed a 16-year-old girl who was walking on a pathway in the Caulfield East Reserve, threatened to kill her if she did not remain quiet, pushed her to the ground, put your hand over her mouth to stop her from screaming and forcefully digitally raped her. Two days later you tried to commit two armed robberies at milk bars in Noble Park and Keysborough.

38You were released from custody for that sentence on July 27, 2019, were re-offending by October and on December 2 and 3 committed the serious sexual assaults now before this Court.

39Your counsel informed me you served the whole five years of your sentence because you did not have the capacity to fill out the paperwork to apply for parole. Parole enables offenders to be released into the community under supervision, with reporting conditions and conditions relating to accommodation and treatment programs to be undertaken. There are severe consequences for offenders who breach parole. Parole operates to protect both the community and offender, but you left jail without supervision or the intensive support you clearly required.   

40Further, your counsel informed me the Sex Offender Treatment program you were required to undergo while serving the 2015 sentence was delivered in a mainstream group format and you could not understand it.

Psychological reports

41I received psychological reports going back to your adolescence and childhood.  Turning to recent assessments, in her report dated 26 February 2023 psychologist Carla Ferrari diagnosed you as suffering an Attention Deficit Hyperactivity Disorder (“ADHD”), a Borderline Personality Disorder, Post Traumatic Stress Disorder (PTSD), an Alcohol Use Disorder and a Stimulant Use Disorder.  You reported a history of auditory hallucinations, that is hearing voices, depression, and chronic suicidality. 

42You counsel informed me this became acute after your release from jail in 2019, after completing the 2015 sentence for rape. In the roughly four months between your release into the community and your arrest on December 4, you made regular suicide attempts - drinking bleach, throwing yourself into traffic and trying to hang yourself.  You also relapsed into drug use in an attempt of what you described to one psychologist as an attempt “to stop thinking about everything and stop feeling depressed” and began drinking alcohol daily.   

43You were admitted to the Royal Melbourne Hospital on 16 October 2019, after a suicide attempt by strangulation.  On 19 October 2019, you were again admitted to the Royal Melbourne Hospital after another suicide attempt by drug overdose.  You left there feeling acutely suicidal.  On November 29, 2019, you were again admitted to hospital following yet another suicide attempt. There you committed the criminal damage offence contained in Indictment Number 3.  Hospital records indicated that you repeatedly banged your head on the walls at the hospital during that admission. Your counsel told me you damaged the window to jump out and kill yourself.  You were handcuffed to your hospital bed.  Police were called.  You were taken to a local police station and released on bail and made your own way back to your accommodation at Francis House. 

44Dr Laura Anderson a neuropsychologist with the Forensicare Problematic Behaviour Support Services conducted diagnostic testing on you and had access to past psychiatric and psychological reports arising from various examinations of you over the years. She noted they revealed you had a history of engaging in self-harming behaviour, which had been evident throughout your placement in foster care during your childhood.  You have been assessed over the years as suffering from severe levels of depression and suicidal ideation.  You told Dr Anderson that, since being remanded in custody, you have not experienced any active thoughts of self-harm or suicide, she writing, “He explained that he only thinks of ending his life when he is in the community”.

45You reported to Dr Anderson significant daily use of alcohol and a long history of smoking methylamphetamine, which you have more recently injected. You told her you used ice a couple of days before this offending.  You also have a history of abusing prescription medication and had done so on the day of this offending. 

46Dr Anderson noted that across a range of skill domains your level of functioning represented a significant and severe departure below the average level, but you have a slight relative strength in your verbal abstract reasoning skills, which fall within the borderline range for your age.  That is, you have reasonable verbal skills compared to other areas such as attention and concentration, speed of information processing, learning and memory where you fell into the “Extremely Low” range for people your age.  She believed your capacity to hold a conversation could cause others to overestimate your overall level of functioning because as she said:

“…,, his capacity to provide appropriate verbal responses is better developed than all other aspects of his cognitive functioning and to some extent it may cover up his underlying cognitive deficits at a superficial level.”

47It was her clinical opinion that overall, you presented with both an intellectual disability and what she described as “significant mood and behavioural disturbances” which:

“…  appear to surpass the general presentation of an individual with an intellectual disability.  That is to say in my clinical opinion the functional deficits that he presents with are multifaceted and severe and are over and above that explained simply by an intellectual disability of mild severity.”

48I hasten to add that mild severity means mild compared to other intellectually disabled people, and not mild compared to people with normal cognitive functioning.

49She believed it was highly likely that your intellectual disability and what she described as your “well-established long-term mood and behavioural disturbances” were due to the toxins your mother exposed you when using drugs while pregnant with you.   

50Insofar as this offending is concerned Dr Anderson wrote that your overall clinical presentation was much more complicated than simply intellectual disability.  She stated:

“In relation to the impact of his overall presentation upon his behaviour and decision making at the time of his…offending, my clinical opinion is such that he has extremely poor independent living skills, emotional coping skills and deficit thinking skills.  At the time of his… offending he was reportedly experiencing a significant deterioration in his mental health, characterised by suicidal ideation.  This is likely to have further impeded his clarity of thought, his consequential thinking skills, his impulse control, and his overall functioning.  As such, my clinical opinion is that it would be extremely difficult for him to effectively moderate his behavioural response to any impulsive thoughts or emotions he experienced at that particular time.”

51She found that you also met the diagnostic criteria for a Major Depressive Disorder.  Asked to give an opinion as to any nexus between your intellectual disability and this offending.  Dr Anderson wrote:

“In my opinion the underlying cause of his multifaceted dysfunction is likely attributable to his in-utero exposure.  However, his dysfunction in each distinct domain of functioning is likely to contribute to a cumulatively higher level of dysfunction.  His reduced cognitive functioning likely makes it more difficult for him to understand and appropriately respond to his internal emotional state and vice versa.  His early life trauma and poor emotional functioning is likely to negatively impact his ongoing cognitive deficiency as he exists in a heightened emotional state in the community.”

52Dr Anderson also wrote that you responded “somewhat positively” to the “highly restricted and structured environment of prison” because you are institutionalised and have developed a sense of safety in jail “because this setting reduces the cognitive and emotional burden placed upon him in order to function on a day-to-day basis.”

53It was Dr Anderson’s clinical view that your disability needs cross your offending behaviour treatment needs and that given the complexity of your overall conditions it was “highly likely the treatment provided” (that is the Sex Offender Program “did not sufficiently address all his treatment needs”.   She concluded:

“In his case as I have outlined my opinion is that his complex disability needs have been poorly understood to date and as such his functional deficits have continued to act as a significant responsivity factor that has impeded his offender rehabilitation and successful integration into the community.  I strongly recommend that a disability framework is utilised to firstly understand his functional deficit and then a forensic risk framework is implemented in addition to addressing his disability needs.  I would anticipate that if this approach is utilised it will become apparent that he requires a significant and intensive level of therapeutic intervention and support.”

54Psychologist Carla Ferrari stated at par 116 of her report dated 26 February 2023 “…there is clearly a history of severe psychological impairment with Mr Russo displaying a pattern of suicide attempts and self-harming behaviour since adolescence as well as marked impulsivity, aggression, emotional deregulation issues and pervasive mood issues. Self -regulation problems are key symptoms of PTSD, ADHD and Personality Disorder and have consistently been found to relate to an increased risk of recidivism. Mr Russo has been unable to function independently, has a limited education and employment history, and there are neuropsychological concerns as to his cognitive functioning which may have implications for moral culpability, his ability to engage in treatment and his ability to comply with orders without intensive support.”  She assessed you as being at high risk of future sexual reoffending.

55In summary it appears that because of your mother’s substance abuse while pregnant with you, you were born with an intellectual disability and severe mood disorder condition. You were then traumatised by your parents ‘subsequent ill treatment of you and the abuse you suffered during your years in state guardianship when you were abused emotionally, physically, and sexually in foster care and juvenile detention.  You were a vulnerable, high-needs child and you were failed by those charged with your care at almost every stage of your development.

56You are now thoroughly institutionalised and suffer complex cognitive and emotional disabilities which have never been properly addressed. You have no supporting family or friendship circle. It seems you simply cannot cope in the community, and on your release swiftly fell back into drug abuse and criminal offending. Your emotional distress could be seen in the multiple suicide attempts you made in the months between your release from prison in late July 2019, the last on November 29, 2019, only days before your attack upon the complainant on December 3. You do not have the cognitive skills to understand your emotional difficulties, such as depression, to seek help or to regulate your behaviour. You, therefore, as Dr Anderson put it have difficulty appreciating the impact of your offending on others and are likely to have “difficulty understanding and communicating a level of remorse that may be expected from a typically-functioning individual.”

57Your impulsivity is worsened by your ADHD.  You were living at a facility which provides accommodation to intellectually disabled sexual offenders, but it did not, nor is it designed to, provide the supervision structure and treatment you required to live safely in the community.  Your counsel informed me that, on the night in question, you had also taken multiple doses of the drug, Lyrica, a nerve pain medication which had been prescribed to you, and then simply took yourself out into the night, where you most unfortunately encountered the complainant. I was provided no information as to the effects such medication can have so am unable to factor it in as a component of the offending. Nevertheless, I am satisfied that over all your living situation was one not protective either of you or the community and it was in that context that this appalling offending against the complainant occurred. 

58Without appropriate support in the community, you experienced severe levels of depression and distress, and your intellectual disability has prevented you from developing insight into the factors contributing to your behaviour or, as Dr Anderson put it, “the impact of his offending behaviour on others”. It was her view you were likely to have “difficulty understanding and communicating a level of remorse that may be expected from a typically-functioning individual”

59You are only comfortable and regulated, it would appear, with an extremely strong structure around you, such as that afforded by prison. As sentencing courts have found time and again there is a severe shortage of such supported accommodation in the community for people suffering such intellectual and emotional handicaps. Given the offending for which you had most recently been jailed, and which has now been replicated and escalated in the current offending, it is clear in my view that you fell through gaping cracks in the Corrections’ system. Given your offending, personal and psychological history this represented a dreadful oversight by State authorities.

Submissions

60The prosecutor Mr Grant submitted your offending against the complainant was a particularly serious example of the offence of rape. In summary he said this was a predatory terrifying humiliating and degrading attack aggravated by violence and a threat to kill, and the repeated nature of the rapes and sexual assaults which lasted for some hours. You wore no condom, exposing the complainant to the risk of pregnancy and disease. You continued your attacks in the face of the complainant’s evident distress, resistance, protests and fear. He submitted your moral culpability was high. Mr Grant submitted you had shown little in the way of insight or remorse for your offending against the complainant. 

61Defence counsel Ms Skvortsova conceded your offending warranted a lengthy custodial sentence. In a most helpful plea she submitted however that your complex intellectual and psychological impairments reduced your moral culpability for the offending against the complainant and reduced the need for general and specific deterrence. She also relied on the High Court decision of Bugmy[1] where the principle was enunciated that the effects of profound childhood disadvantage can serve to ameliorate the moral culpability of subsequent criminal offending.  She submitted you were entitled to a significant discount for your plea of guilty at a time when courts are tackling the backlog in trial work caused by pandemic restrictions. You were also a youthful offender at the time.

[1] Bugmy v The Queen (2013) 249 CLR 571

Conclusions

62The question of moral culpability is a somewhat vexed one in your case where there is psychological material before me which makes it clear your capacity to exercise control, have appropriate empathy or remorse is compromised by your intellectual disability and mood disorder. Those deficits were worsened by your utterly deprived upbringing, and this also means that as a person suffering intellectual and mental disabilities you are in many ways not a suitable vehicle for general deterrence. I accept the matters raised on your behalf and have taken them into account in determining the appropriate sentence. I also accept there has been significant delay in this matter, partly due to COVID restrictions, but also in 2022 by a legal challenge on your behalf to the forensic evidence obtained by police which was also then appealed to the Court of Appeal. Overall, I accept that   you have had these matter hanging over your head for a considerable period.

63I also accept the aggravating features claimed by Mr Grant. This was an horrendous sexual attack, and a most serious example of the already serious charge of rape. It was predatory, persistent, highly violent, terrifying, and prolonged. The complainant was repeatedly raped and sexually assaulted over several hours. Charge 2 comprises four penile/vaginal rapes and Charge 3 comprises two incidents of, as the complainant described it rough and brutal digital penetration.  The offending also involved what Mr Grant rightly termed degrading and humiliating sexual assaults.  Overall, it encapsulated many of the worst aspects of this type of offending that could be envisaged.

64Pursuant to S6B (2) of the Sentencing Act 1991 because of your previous sexual offending history involving convictions and sentences for rape and indecent assault you fall to be sentenced as a serious sexual offender on charges 2 to 7. S6D (a) states that where a court considers a term of imprisonment is justified in sentencing a serious offender, the Court in determining the length of that sentence “must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed.” The prosecution does not seek a disproportionate term.

65It is clear you are an extremely dangerous offender. You violently raped a teenage girl in 2015 and only four months after your release on that sentence launched an horrendous sexual attack that was considerably worse than your earlier offending. You present as a high risk of re-offending. In my view protection of the community, in this case the community of women, dominates the sentencing exercise before me. However deplorable your upbringing, however pitiable the circumstances of your birth, the objective threat you present to women generally cannot be underestimated. Your personal deficits and disabilities while deserving of consideration, also serve to undermine your capacity for reform and your prospects of rehabilitation. As a result, other mitigating sentencing considerations must lose their force. 

66In sentencing you I do take into account the factors outlined by your counsel to which I have referred. It was conceded by her that only a significant term of imprisonment was appropriate in your case.

67I therefore sentence you as follows:

Indictment K13134073.A (Indictment No 1)

68Charge 1 - Reckless conduct endangering serious injury: 3 years imprisonment.

69Charge 2 - Rape: 14 years imprisonment

70Charge 3 - Rape: 12 years imprisonment

71Charge 4 - Sexual assault: 2 years imprisonment

72Charge 5 - Sexual assault: 2 years imprisonment

73Charge 6 - Sexual assault: 2 years imprisonment

74Charge 7 - Sexual assault: 2 years imprisonment.

75Charge 8 - Attempted robbery: 7 months’ imprisonment

Indictment K12888157 (Indictment No 2)

76Charge 1 -  Attempted theft: 2 months’ imprisonment

77Summary Charge - Possess a controlled weapon: 4 months’ imprisonment 

Indictment K13062299 (Indictment No 3)

78Charge 1 - Criminal Damage: 2 months’ imprisonment

79Summary charge - Commit an indictable offence whilst on bail: 1 months imprisonment

80In relation to Indictment 1 the base charge will be the sentence imposed on Charge 2 – 14 years. I order that 2 years of the sentence imposed on Charge 3, 18 months of the sentence imposed on Charge 1, 7 months on each of the sentences imposed on Charges 4, 5, 6 and 7 and 2 months of the sentence on Charge 8 be served cumulatively to the sentence imposed on Charge 2 and all other sentences giving a total effective sentence on that indictment of 20 years. 

81In relation to Indictment No 2 the sentences imposed on Charge 1 Attempted theft – two months imprisonment - and the summary charge of possessing a controlled weapon – 4 months imprisonment are to be served concurrently giving a total effective sentence of 4 months’ imprisonment.

82On Indictment number three the sentences imposed on Charge 1 Criminal Damage – 2 months’ imprisonment and the summary charge of Committing an Indictable Offence on Bail – 1 month – are to be served concurrently giving a total effective sentence of 2 months.

83I order that 2 months of each of the total effective sentences imposed on Indictment Nos 2 and 3 are to be served cumulatively to the total effective sentence imposed on Indictment No 1 and to each other giving a total effective sentence for all three Indictments of 20 years and 4 months. I order that you serve 17 years before becoming eligible for parole.

Sex Offender’s Register

84In 2015 you were placed on the Sex Offenders register for 15 years. The prosecution now applies for a further registration order, this time for life. I am satisfied to the requisite standard, that is, beyond reasonable doubt, that you pose a risk to persons in the community. Balancing that risk with the restrictions this registration will impose on your rights of freedom and autonomy of action, as I am required to do by the provisions of the Sex Offender’s Registration Act 2004, it is my view the magnitude and nature of the risk you present are such that I should make the order sought. As you have pleaded guilty to the sexual offences on Indictment K13134073.A you have now been convicted of two Class 2 offences (one in 2015 and one on the present indictment) and therefore will be registered for life.

85Having sentenced you I make the following observations. Without the structured and intensive therapeutic support recommended by Dr Anderson, and Ms Ferrari the chances of you re-offending in the same way, remain high.

86You are a relatively young man, and despite the length of the sentence I have imposed will one day be released. I will ensure these sentencing remarks are forwarded to prison authorities along with all psychological material received on the plea. Simply leaving you in a mainstream unit where your intellectual disability and severe emotional difficulties are not attended to, would in my view provide insufficient and inadequate protection to either yourself or the community.

87Dr Anderson put it this way:

“My view is that whilst Mr Russo may not perceive his prison setting as more onerous than another prisoner, by him being placed in a mainstream prison unit (i.e., not a disability specific unit) and by being imprisoned in general, his access to suitable disability supports and opportunities to develop his independent living skills are severely reduced.”  

88While I have no power to direct Corrections Victoria, it must be hoped you are ultimately placed in a specialist unit housing intellectually disabled prisoners, and throughout your prison term are afforded whatever therapeutic resources are available. It is important that your intellectually disability is not overlooked or discounted because of your conversational skills. You also require a Sex Offender’s Program delivered in a form you can understand.

89In other words, without appropriate intervention while in jail the factors that led to this terrible offending will continue to operate and the risk you pose to women on release will remain high.

90Pursuant to S6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of 23 years and ordered a minimum term of 20 years.