Director of Public Prosecutions v Sang (a pseudonym)
[2021] VCC 1840
•23 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEONG SANG (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2021 | |
DATE OF SENTENCE: | 23 November 2021 | |
CASE MAY BE CITED AS: | DPP v Sang (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1840 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Rape – standard sentence offence – victim vulnerable due to intoxication – victim raped while unconscious – no prior criminal history – reasonable prospects of rehabilitation – likely deportation following term of imprisonment – COVID-19 pandemic
Related summary offence – fail to answer bail – taken into custody 6 months later – fled interstate – extradited to Melbourne after 4 months in Brisbane
Legislation Cited: Crimes Act 1958 ss 38(1), 38(3); Bail Act 1977 s30(1); Sentencing Act 1991 ss 3(d), 5(2G)-(2GC), 5A(1)(b), 6AAA 5A(3),11A
Cases Cited:R v Hasan [2010] VSCA 352; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Palliyaguruge [2021] VCC 958; DPP v Frank (a pseudonym) [2021] VSCA 163; DPP v Abdi [2020] VCC 1668; DPP v Amin [2019] VCC 1756; DPP v Elwood (a pseudonym) [2019] VCC 128; DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Hyde [2019] VCC 712; DPP v Kala [2021] VCC 151; DPP v Mirza [2021] VCC 1181; DPP v Singh [2019] VCC 1484
Sentence: Term of imprisonment for a period of 6 years and 3 months with a non-parole period of 3 years and 10 months
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown (For Plea) | Office of Public Prosecutions |
| Mr A. Hodgeman (For Sentence) | ||
| For the Accused | Ms J. McGarvie Ms G. Calgaro (For Sentence) | Gallant Law Pty Ltd |
HER HONOUR:
Introduction
1Jeong Sang,[1] you have pleaded guilty to one charge of rape contrary to s38(1) of the Crimes Act 1958. The maximum penalty for rape is 25 years imprisonment.
[1] A pseudonym.
2You have also pleaded guilty to the related summary offence of fail to answer bail pursuant to s30(1) of the Bail Act 1977. The maximum penalty for this offence is two years imprisonment.
3I have had regard to the oral and written submissions made by counsel and the material tendered on your plea.
Circumstances of the offending
4You have accepted the circumstances of your offending as set out in the Summary of Prosecution Opening Upon Plea dated 23 September 2021. In summary, on
24 December 2018, the victim commenced her first shift as a waitress at a Korean restaurant in Melbourne's CBD. She was working there for a three-day trial period. You worked at the restaurant as a cook.5At approximately 5.00 am on 26 December 2018, you, the victim and a group of your colleagues finished your shifts at the restaurant and sat at the bar to have some drinks to celebrate Christmas. You spoke to the victim for the first time.
6After a while, the victim became so intoxicated that she fell over and vomited. This brought an end to the drinking. While your colleagues cleaned up, the victim sat at a table by herself and was falling in and out of consciousness.
7You left the restaurant with the victim without notifying anyone.
8You received a call from two of your colleagues asking where you and the victim were. You said that you were outside her apartment complex but did not know her apartment number. One of your colleagues provided you with the victim's apartment number. In fact, you walked the victim directly from the restaurant to your own apartment. The victim was barely conscious and you had to support her to walk.
9At approximately 7.53 am, you arrived in front of your apartment building. Your girlfriend was out the front as you led the victim through the entrance. Your girlfriend was upset with you and told you not to take the victim upstairs. You dropped the victim onto the footpath directly outside the entrance to the apartment building. She lay there unconscious for approximately 2 minutes while you and your girlfriend had a discussion.
10After your girlfriend left the apartment building, you picked up the victim and took her into your apartment.
11At approximately 8.02 am, you were spotted on CCTV footage dragging the unconscious victim into your apartment.
12At 8.06 am, you were captured on CCTV footage running from your apartment building. You had left the victim on the floor of your bedroom and were heading back to the restaurant, where you resumed drinking with two of your colleagues.
13At approximately 9.25 am, you returned to your apartment. You found the victim asleep on your bedroom floor where you had left her. You removed her jeans and lifted her onto your bed. The victim was still asleep and did not wake up. You sexually penetrated the victim by introducing your penis into her vagina without her consent. The victim was unconscious at the time and has no recollection of events between falling over at the restaurant and waking up in your bed.
14At approximately 1.00 pm, you woke the victim up. She was under the covers in your bed and noticed she was not wearing pants. You were touching her hair and laying on your side next to her on the bed. The victim was confused and disoriented. You told her that she had vomited, and that you had to remove her pants. When she asked you what had happened, you said she had been too drunk and that you had taken her back to your apartment.
15You walked the victim downstairs and explained to her how to get back to her apartment. You told her that you were tired and that you wanted to rest. You provided her with your phone number and said that you could talk about it later.
16At approximately 1.26 pm, the victim left your apartment.
17When the victim arrived home, you sent her a text message asking her to:
'Just say that you can't remember anything and that you woke at home! If someone asks…if you say you woke up at my place people will think that it's strange…I will explain the rest! Ok??'
18The victim went to the toilet and felt some pain around her vagina. She then noticed blood in her underwear. When she wiped her vagina, she also noticed blood on the toilet paper. This caused her to become suspicious of the circumstances surrounding her waking up in your bedroom without her pants on.
19The victim texted you and arranged to meet you in the lobby of her apartment block so that she could ask you some questions about what happened. She also arranged for one of your colleagues to be present.
20At approximately 6.17 pm, you met the victim and your other colleague in the lobby of her apartment block.
21The victim asked you what happened and to tell the truth. You told her that she had been too drunk, and that you had intended to take her to her apartment but because she could not give you her address you decided to take her to your home instead.
22Your work colleague argued with you and said she provided the victim's apartment number to you. You told your work colleague that you were already at your apartment when you spoke to her on the phone. Your colleague continued to argue with you, about saying you were outside the victim's place and that she thought the victim was safe. You said that the victim was too drunk and you too tired for you to take her to her place.
23The victim asked why you removed her pants. You smiled and told her that she was drunk and had vomited on them, and that when you put her to bed, you took her pants off because you did not want to get your bed dirty.
24The victim asked why you told her not to tell anyone. You said it was because you did not want anyone else to misunderstand and you did not want to hear other people talking about it.
25You promised you did not do anything or lay your hands on the victim, and that you believed it was unfair for you to be accused because you were only trying to help.
26The victim argued with you, telling you that she found something wrong with her body, and about the blood in her underwear. You told her that according to your understanding, people do not have hymens so you would not actually bleed. You told her that she fell over a lot, and that she may have injured herself in one of those falls.
27At approximately 7.17 pm, you, the victim and your colleague left the apartment lobby and attended the restaurant. The victim and your colleague advised your manager about what they thought happened between the victim and you. Your manager suggested that you all meet up and talk about it later.
28At approximately 10.00 pm, you, the victim and your colleague and the manager met and walked to Flagstaff Gardens. You all sat on a bench to discuss what had happened.
29Your manager told you that it was wrong for you to take the victim back to your place and take her pants off. You denied touching her. The victim said she believed something had happened to her. Your manager kept pushing you to tell the truth. You acknowledged that maybe you did have impure thoughts and that maybe you did touch her but that it did not go any further than that and that you did not remove her underwear. You said you did not have sexual relations with the victim but that you did have impure intentions. The victim said she wanted to go to the hospital to be examined.
30At approximately 11.20 pm, you and your manager left Flagstaff Gardens together. Your colleague walked the victim home.
31At 11.29 pm, you sent the victim a text message which stated:
'I really didn't do it, it's not in my memory please believe me. Things are getting out of hand. I worry about the owner and his shop plus of me. I'm sorry about everything, I will get on my knees and apologise but it really didn't happen.'
32On 27 December 2018, at approximately 7.00 pm, the victim attended The Royal Women's Hospital. A forensic examination was conducted. The victim had sustained a 1 x 1.25 cm laceration which extended to within 1 cm of the anus, with fresh bleeding.
33In the early hours of 28 December 2018, while investigators were returning the victim home, she pointed you out walking on the street near her apartment. You were arrested and conveyed to the Melbourne West Police Station for interview.
34At 2.24 pm, the interview was suspended, and investigators accompanied you to your apartment, where they executed a search warrant.
35As a result of the search, investigators seized:
(a) a doona with what appeared to be a bloodstain;
(b) blue spotted doona cover;
(c) tissues with what appeared to be blood;
(d) 2 tissues with what appeared to be blood and semen;
(e) 1 tissue with what appeared to be blood and semen;
36At the completion of the search, you were conveyed back to the Melbourne West Police Station to continue the interview.
37In summary, you told the police that:
(a) you do not remember what you and the victim spoke about at the restaurant;
(b) you felt responsibility towards her as a co-worker, and wanted to help her get home;
(c) you tried to take the victim to her apartment because you knew that she lived close by, before realising that you did not know her apartment number. You tried asking her but she could not tell you. She was unconscious so you took her to your place;
(d) you do not recall telling your work colleagues that you were going to take the victim home to her apartment;
(e) the victim was not very conscious and you had to support her to walk;
(f) you also told the police you told your colleagues that you had taken the victim back to her apartment because you thought it would look bad if you told them that you had taken her back to your apartment;
(g) When you got back to your apartment the victim was still on the floor next to your bed. You told her to get up and urged her to sleep on your bed but you could not wake her, so you lifted her onto your bed. She had vomit on her clothes and you could not remember if you took her pants off or if she took them off;
(h) When you put her on the bed you fell asleep next to her and when you woke up she had no pants on. You put the blanket over her and wiped vomit off her face then left the room. You said you went to sleep in the loungeroom and woke up again at about 1.30 pm. You went back to your bedroom where you woke the victim up and told her to go home;
(i) you could not remember doing ‘‘bad things’’ to the victim as claimed by her;
(j) you told police that the injury may have been caused when the victim fell over;
(k) you sent the victim the text message because you believed that the victim waking up at your place did not look good for her.
DNA evidence
38DNA buccal swab and penile swabs were obtained, and you were released pending further enquiries. One of the penile swabs yielded a mixed DNA profile from at least 3 contributors. The victim was not excluded from being a contributor to that DNA profile. Analysis of the DNA sample revealed the likelihood that the victim was a contributor to the DNA profile was 2.4 million to one.
Victim impact statement
39There is no victim impact statement. However, in her witness statement dated
2 January 2019, the victim said that she felt ‘‘very scared’’ because she knew you were out of the police station. She said that because of your offending, she could no longer work at the restaurant, and she could not earn money anymore.40The victim has since returned to Korea.
Failure to appear whilst on bail
41On 12 February 2019, you were charged with rape and bailed.
42On 24 May 2019, the matter was listed for Committal Mention in the Magistrates' Court. You failed to appear on bail and a warrant was issued for your arrest.
43On 23 November 2019, you were intercepted by Queensland Police in Brisbane, where you had been living for the past four months. You were arrested on the outstanding warrant issued on 24 May, before being extradited to Melbourne. You were remanded in custody on 27 November 2019.
Plea of guilty
44You pleaded guilty to rape and the related summary offence at the Committal Mention on 23 April 2021. I accept that by your plea of guilty you have saved the community the time and expense of a trial. I also accept that by pleading guilty, you have spared the victim from giving evidence at committal and at trial. I have had regard to the Court of Appeal's comments that a plea of guilty entered during the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not impacted by the pandemic. Your plea of guilty bears utilitarian value.
45Your counsel, Ms McGarvie, submitted that your plea of guilty demonstrates a willingness to facilitate the course of justice and acceptance of responsibility. However, the prosecution submitted, and Ms McGarvie conceded, that your guilty plea was not entered at an early stage. You had an opportunity to plead guilty at the Committal Mention on 24 May 2019, however you failed to appear and a warrant was issued for your arrest. You were extradited to Victoria from Queensland six months later. In both her written and oral submissions,
Ms McGarvie acknowledged that your failure to answer bail is a ‘‘reasonably serious example of that offence’’. In my view, and when placed in its proper context, your conduct undermines the degree to which your plea of guilty demonstrates a willingness to facilitate the course of justice.
Pre-sentence detention
46You have served 732 days of pre-sentence detention in this matter.
Prior convictions
47You do not have a prior criminal history.
Personal circumstances
48Your personal circumstances are set out in detail in the report of Mr Michael Bilyk, Clinical Psychologist, dated 2 October 2021, to which I have had regard. In summary, you are 31 years old. You were 28 years old at the time of your offending. At that time, you lived in an apartment in Melbourne's CBD with your girlfriend and two housemates. You were working as a cook in a nearby Korean restaurant, which is where you met the victim.
49You were born in South Korea in 1990. Your family lives in South Korea. You have two siblings who live independently. Your parents remain married. Your parents were consistently employed, but your family experienced low socio-economic circumstances. You denied family history of mental health difficulties, problematic substance use or criminality. You described your parents as supportive, but added that they were often absent working. Your mother is in remission from cancer. You reported that your family is aware of your offending and, while they are upset with you, they remain supportive.
50You completed your education in South Korea. Upon completion of secondary school, you worked in a factory. You were involved in a serious motor vehicle accident, for which you spent a week in hospital in a coma. You subsequently engaged in a period of rehabilitation over 12 months. You denied suffering from an Acquired Brain Injury or decline in cognitive functioning or memory due to the accident.
51In 2013, you and some friends came to Australia on a working holiday visa. You have since worked as a kitchen hand and a cook. From 2014 to 2018, you were in Australia on a working visa. In 2018, you were on a student visa while you studied cookery. You remained on your student visa until you were remanded in custody in 2019. You are not an Australian citizen.
52In 2014, you married a woman who came to Australia with you in 2013. You separated from your wife in 2018, and divorced in 2020. Since 2018, you have been in a relationship with another woman who you met in 2014. You reported that she is aware of your offending and remains supportive.
Objective gravity of the offences
53Rape is a most serious offence. This is reflected by its status as a Category 1 offence, and the fact that the maximum penalty is 25 years imprisonment.
54Principles of general deterrence, just punishment and denunciation are important sentencing considerations for the offence of rape.
Objective gravity of the offending
55Ms McGarvie acknowledged the seriousness of your offending and that the victim was ‘‘extremely vulnerable’’. However, she submitted that your offending was not pre-meditated, but rather opportunistic, involving limited, if any, prior planning. It was a single instance rather than multiple instances of sexual penetration. She submitted that there was no evidence that you ejaculated into the victim's vagina. The offending was not accompanied by violence or threats of violence. You did not use any weapons in the offending. She also submitted that you were not in a position of authority over the victim. While all acts of rape are inherently degrading for a victim, the offending lacks features of degradation present in some other cases. Even though you claim not to remember the offending, you accept responsibility for your actions.
56Mr Brown, counsel for the prosecution, initially took issue with Ms McGarvie's submission that were was little to no pre-planning. However, he later conceded that I could not be satisfied that you intended to commit the offence of rape until immediately before the offending took place.
57Your victim was extremely vulnerable. She consumed a large quantity of alcohol, causing her to pass out. You took advantage of her. She suffered an injury as a result of your offending, resulting in bleeding. She was also vulnerable by virtue of being a Korean national. She was alone and isolated from the supports of friends and family. You further isolated her by taking her back to your apartment without telling any of your colleagues.
58I accept that there was no evidence of anything more than limited pre-planning or pre-meditation on your part. While your offending may not exhibit aggravating features present in other examples of this type of offending, it remains the case that you used the unconscious victim for your own gratification. Raping an unconscious person is an act of high culpability.[2]
[2] R v Hasan [2010] VSCA 352, [37].
Moral culpability
59You were deceitful. You told your colleagues and the police that you did not know which apartment the victim lived in, even though you asked for and received that information from your work colleague. You reported to Mr Bilyk that you recalled taking the victim back to your apartment after she had consumed excessive alcohol and because you did not know her address. You claimed that you felt a responsibility to help her.
60However, your actions towards her demonstrate a blatant disregard for her welfare by sexually penetrating her while she was unconscious and unable to resist.
61You reported no memory of the period of alleged offending due to excessive alcohol use. The extent of your self-reported memory loss is unclear. Mr Bilyk noted that while not discounting the potential impacts of alcohol, you have described periods of time surrounding the alleged offence, where you seemingly made reasoned decisions. You did not describe a problematic history of alcohol use. You did not report broader issues with memory.
62Your acknowledgement of responsibility does not appear to be a decision you have arrived at naturally, but rather one that is influenced by the level of evidence that has been able to be demonstrated against you, namely the DNA evidence.
Mr Bilyk described this as concerning. From a psychological perspective, your position may well be protective at some level, in that you may be motivated to preserve the relationships you have been able to maintain. You have not considered your implication in the offending beyond this.63Mr Brown took issue with your claim that you had no memory of the offending due to the excessive consumption of alcohol. He submitted that this explanation lacks credibility, given you were seemingly sober enough to drag the victim from the restaurant to your apartment, return to the restaurant to continue drinking, and lie to your colleagues that you had taken her back to her apartment when you had actually taken her back to your apartment instead.
64I find your stated inability to recall the offending unconvincing. You appear to have no problem remembering the events leading up to the offending, events which saw you engage in a degree of reasoned decision making. Further, you asserted positively to the victim that nothing happened. When further challenged, you then said that maybe you did touch her. You then tried to shift the cause of the victim's pain and bleeding onto her by suggesting it may have been caused by her falling over.
Prospects of rehabilitation
65Ms McGarvie submitted that, with treatment, you have very good prospects of rehabilitation, pointing to your lack of prior criminal history, good work history, stable mental health and good family support. Mr Brown submitted that it is open for me to find that your prospects of rehabilitation are relatively favourable, however while you have accepted responsibility for your offending, you have not shown true remorse for your offending.
66Mr Bilyk concluded that you represent a moderate to low risk of re-offending. He identified a number of factors which are protective against future offending, namely support from your partner and parents, and a lack of prior criminal history. There was no evidence of clinical psychopathology. Your self-reported psycho-social history does not reveal evidence of abuse or neglect in your family of origin. There was no indication of broader anti-sociality, mental health instability or abnormalities with respect to your sexual or development history. You lack a general and sexual offence history. You returned a minimal number of attributes relevant to sexual recidivism.
67Some of the issues Mr Bilyk identified as contributing to your offending behaviour include your lack of self-awareness, difficulties coping with stress and alcohol abuse. He reported that your offending was not well understood: you seemingly acquiesced to accepting guilt based on DNA evidence only. You otherwise appear fixed in your opinion of having no memory of the incident and do not appear to have considered your implication in offending beyond this.
68You report that your family and your partner continue to support you. You speak to your family every month via video conference, and you have received visits from your partner. I have had regard to a letter written by your partner, where she writes that you are ‘‘very regretful’’ and you ‘‘sincerely reflect and regret’’ the wounds you inflicted on the victim, your family, your partner, and the people around you. She described you as sincere and hard-working.
69My assessment of your prospects of rehabilitation is moderated by your demonstrated lack of insight into your offending. However, in light of family support and your lack of prior criminal history, I consider your prospects of rehabilitation to be reasonable. I have taken this into account in fixing your non-parole period.
COVID-19 pandemic
70I have had regard to the difficulties you have faced while on remand due to the COVID-19 pandemic, including limited contact visits with your partner, and a limited capacity to access courses and rehabilitation. Mr Bilyk noted that a term of imprisonment may negatively impact your current relationship and this may be an added stressor which could impact your mood.
71The time you have spent in custody has been made more onerous by the COVID-19 pandemic, impacting on your ability to participate in programs. You work emptying bins. You have not engaged in programs or education given your limited English skills and COVID-19 restrictions. Your limited English may also disrupt or make it more difficult for you to access education and treatment opportunities while imprisoned.
Prospects of deportation
72Ms McGarvie submitted that because you are not an Australian citizen, you are likely to be deported. You have lived in Australia since 2013. You had a job, a partner and a life here. She argued that the stress associated with your likely deportation will make your time in custody more onerous. Mr Bilyk reported that the uncertainty surrounding the prospects of your deportation is an added stressor which could impact your mood. However, Ms McGarvie conceded that you do have family support in Korea, making the prospect of deportation less stressful than for someone whose whole family lives in Australia.
73Mr Brown conceded that there was anxiety surrounding the prospect of you being deported after serving a term of imprisonment, but noted that your partner has expressed an intention to return to Korea. In her letter to the court, your partner explained that she is in Australia on a temporary visa and that she does not know when to leave. Mr Brown submitted that if you are deported, there would be scope for you to resume your relationship with her.
74I accept that you are likely to be deported at the end of your sentence, and that this may cause you some anxiety while in custody.
Current sentencing practices
75The offence of rape is a Category 1 offence, which means that I am required to impose a custodial sentence.[3] The offence of rape is also a standard sentence offence.[4] The standard sentence is one where the Sentencing Act specifies the appropriate sentence for an offence in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.[5] Objective factors affecting the relative seriousness of an offence must be determined wholly by reference to the nature of the offending, and without reference to matters personal to a particular offender.[6] In the case of rape, the standard sentence is 10 years imprisonment. The Court of Appeal has warned that the standard sentence is not a starting point from which the sentence is adjusted upwards or downwards as the case dictates.[7] It is simply another factor to be considered in the application of the instinctive synthesis.[8]
[3] Rape is a Category 1 offence if it was committed on or after 20 March 2017 (Sentencing Act
1991 ss 3(d), 5(2G)-(2GC) ('Sentencing Act')).
[4] Rape is a standard sentence offence if it was committed on or after 1 February 2018 (Crimes
Act 1958 s 38(3) ('Crimes Act')).
[5] Sentencing Act s5A(1)(b)
[6] Ibid s5A(3).
[7] Brown v R (2019) 59 VR 424; McPherson v R [2021] VSCA 53.
[8] Ibid.
76I have taken the standard sentence into account as one of the factors that is relevant to the instinctive synthesis in imposing sentence. I accept that it is a guidepost, to be considered when determining the appropriate sentence in this case. I also take the maximum penalty into account. The sentence I will impose in respect of the rape charge is lower than the standard sentence. I consider the sentence I impose below to be appropriate having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending and matters available in mitigation.
77I am obliged to have regard to current sentencing practice in determining your sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) that current sentencing practices are but one of the many factors that must be taken into account in sentencing.[9]
[9] (2017) 262 CLR 428.
78I have had regard to the Sentencing Advisory Council's Sentencing Snapshot for this offence. The Sentencing Snapshot focuses on cases where rape was the principal offence. I can have regard only to sentences that were imposed under the standard sentencing regime.
79Imprisonment terms imposed on principal offences of rape subject to the standard sentence ranged from 4 years and 6 months to 12 years, with a median term of 6 years. The average sentence was 6 years and 10 months.
80Total effective sentences for cases where the principal offence of rape was subject to standard sentence classification ranged from 4 years and 6 months to 14 years, with a median total effective sentence of 7 years and 8 months. The average total effective sentence was 9 years and 11 months in 2018-19 (4 cases) and 7 years and 1 month in 2019-20 (11 cases).
81The non-parole period for cases where the principal offence of rape was subject to standard sentence classification ranged from 2 years and 6 months to 10 years, with a median non-parole period of 5 years and 3 months. The average non-parole period was 6 years and 2 months in 2018-19 and 4 years and 11 months in 2019-20.
82I have also had regard to the cases provided to me by counsel.[10] It must be borne in mind that every case is different, and the court must have regard to the individual circumstances of each case, which is what I have done.
[10] DPP v Palliyaguruge [2021] VCC 958; DPP v Frank (a pseudonym) [2021] VSCA 163; DPP v Abdi
[2020] VCC 1668; DPP v Amin [2019] VCC 1756; DPP v Elwood (a pseudonym) [2019] VCC 128; DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Hyde [2019] VCC 712; DPP v Kala [2021] VCC 151; DPP v Mirza [2021] VCC 1181; DPP v Singh [2019] VCC 1484.
83For a standard sentence offence, I must fix a non-parole period which is at least 60 per cent of the total effective sentence unless it is in the interests of justice not to do so.[11] Neither party submitted, and I do not consider, that it is in the interests of justice to fix a non-parole period which is less than 60 per cent of the total effective sentence.
[11] Sentencing Act s11A.
Sentence
84Having carefully considered, balanced and weighed all of the matters referred to on your plea, the material relied upon in support and the relevant sentencing principles, I sentence you as follows:
85On charge 1, rape, I sentence you to a term of imprisonment of 6 years.
86On the related summary offence of fail to answer bail, I sentence you to a term of imprisonment of 6 months.
87Charge 1 is the base sentence. I direct that 3 months of the sentence for the related summary offence be served cumulatively upon the sentence imposed in respect of Charge 1.
88The total effective sentence is a term of imprisonment of 6 years and 3 months.
89I direct that you are to serve 3 years and 10 months of your sentence before being eligible for parole.
90I declare that there are 732 days of pre-sentence detention to be reckoned as having been served.
Section 6AAA Declaration
91Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 8 years and 6 months with a non-parole period of 5 years and 6 months.
92Mr Hodgeman, any matters?
93MR HODGEMAN: No, there are no matters.
94HER HONOUR: Ms Calgaro?
95MS CALGARO: Nothing further, Your Honour.
96HER HONOUR: Yes. Please adjourn the court.
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