Director of Public Prosecutions v Schiffel
[2023] VCC 1095
•22 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 21-00076
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY SCHIFFEL |
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JUDGE: | Holding | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2023 | |
DATE OF SENTENCE: | 22 June 2023 | |
CASE MAY BE CITED AS: | DPP v Schiffel | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1095 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trial – found guilty – Plea - one charge – rape – complainant asleep in her own home – accused 23 years of age with no prior convictions.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Azzopardi v R (2011) 35 VR 43; Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161; McPherson v The Queen [2021] VSCA 53; DPP v Flanagan [2023] VCC 576
Sentence: Sentenced to 5 years and 7 months’ imprisonment with a non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M. Sturges | Emma Turnbull Lawyers |
HIS HONOUR:
1Cody Schiffel, on 4 April 2023 a jury of 12 found you guilty of one charge of rape contrary to s 38(1) of the Crimes Act 1958 (Vic). This offence carries a maximum penalty of 25 years’ imprisonment.
2Your offending took place in the early hours of the morning on Friday 13 September 2019 in St Albans in Victoria. You were 23 years old at the time.
3The victim in this matter, who I will refer to as Emma Cain[1] in order to preserve her privacy, was 21 years old at the time.
[1] A pseudonym.
4Ms Cain gave evidence during the trial as to what happened on the morning of the offending. Briefly stated, Ms Cain was at her home in St Albans with her two young children and her friends, Melissa Travis[2] and Ava Garrett[3]. Ms Garrett was about 15 years old. Ms Garrett and her young child had been staying at the complainant’s home for about a month as of the date of the offence. Ms Travis had come to Ms Cain’s home with her child in the afternoon of the 12th of September 2019. The complainant’s home was a two-bedroom unit. As the afternoon progressed into the evening, the children went to sleep in the lounge room. The socialising between the complainant and her friends continued in the complainant’s bedroom. You were invited to come to the complainant’s home by the Complainant’s friend Ms Travis, who texted you an invitation from her phone. You arrived at the unit somewhere around midnight or in the early hours of the morning. You had never been to this unit before, and you had never met the complainant or her friend Ms Garrett.
[2] A pseudonym.
[3] A pseudonym.
5The complainant gave evidence that she introduced herself and her friend to you and for some time you were present in the complainant’s bedroom sitting at the end of her bed mainly talking to Ms Travis. The complaint gave evidence that while you were in her bedroom you mostly spoke with Ms Travis who had invited you there. The complainant was occupying herself by making ‘crank calls on her phone’ with Ms Garrett. The complainant’s evidence was that she had very little conversation with you of any consequence.
6In the early hours of the morning the complainant decided to go to sleep. The sleeping arrangements were that the complainant and her friend Ms Garrett would sleep in the complainant’s double bed.
7Ms Travis had decided to sleep the night there and for that purpose a single mattress was brought in from another room and positioned ‘across-ways’ at the foot of the double bed. You were allowed to stay the night and share the single mattress with Ms Travis.
8The complainant was asked during her evidence what happened after she went to sleep. She said:
I woke up and I could feel something. Like I was asleep, like dreaming, like half asleep kind of a bit awake, I don’t know I could feel something. As soon as I woke up, like properly I realised that Cody was behind me, like having sex with me.
9It was not in dispute that you penetrated the vagina of the complainant with your penis from behind and engaged in sexual intercourse with her. Subsequent forensic investigation established that you ejaculated inside the vagina of the complainant. Your defence at the trial was that the sex was consensual or at least you had a reasonable belief that the complainant was consenting to the sex.
10The complainant’s evidence was that when she woke and realised you were penetrating her, she was petrified,[4] did not know what to do and froze. After the complainant woke up, your penetration of her only continued for a very short time. Your penetration ceased when one of the children could be heard making a noise from the lounge room and you got out of the double bed and went to the bathroom. The complainant woke her friend Ms Garrett, who was still asleep in the double bed next to the complainant. The complainant told Ms Garrett what happened. Ms Travis became aware of the allegation soon after, and you were asked to leave the unit. You drove away from the complainant’s home, but not before the registration of your vehicle was recorded.
[4] T, 95 L 24.
11The complainant telephoned 000 and reported your offending.
12You gave evidence at the trial. Your evidence was to the effect that you could not get to sleep because Ms Travis was snoring next to you on the single mattress and as a result, you got off the single mattress, approached the complainant and asked her if you could sleep beside her in the double bed. Your evidence was that the complainant agreed and that once you had got into the bed you made sexual advances to the complainant from behind. Your evidence was that the complainant moved her body in a way that assisted you to remove her shorts and that she moved her body, and made pleasurable moaning noises, which led you to believe that she was consenting to sex. The complaint in her evidence rejected this scenario. Her evidence was that there was no request for you to get into the bed, she was asleep, and she only experienced your penetration of her when she woke up. Her evidence was that her experience of your penetration was painful.[5] Her shorts and underwear were not removed but pulled to the side which allowed you to penetrate her.[6]
[5] T, 93 L 24; 94 L 21; 103 L 23.
[6] T, 103 L 18.
13The verdict of the jury indicates that they have found the complainant did not consent to this penetration and that you had no reasonable belief that she was consenting. During your plea hearing your counsel submitted that the jury’s verdict was consistent with a finding that you had an honest but unreasonable belief that the complainant was consenting. It is my task to sentence you upon facts that I find established, and which are consistent with the jury’s verdict. I am satisfied beyond reasonable doubt that the complainant was asleep both when you got into her bed and at the time you penetrated her vagina with your penis. I reject your evidence that you sought permission from the complainant to get into her bed. I am not satisfied on the balance of probabilities that at the time you penetrated the complainant’s vagina you had an honest (but unreasonable) belief that she was consenting. The complainant had practically no dealings with you before you went to sleep in her bedroom. She had her 15-year-old friend sleeping next to her in the bed and her evidence was entirely consistent with her not having moved or done anything at all that could have led you to believe she was consenting to your act of penetration.
Victim impact
14The complainant has made a brief but compelling victim impact statement.[7] She felt she had to move from her home as the bedroom reminded her of your offending. She states she has been experiencing depression and anxiety since your offending and this in turn has led her to have to ‘struggle with alcohol use’. As a result of a combination of depression, anger and drinking, her children have been placed in care. She struggles to talk about her feelings even with counsellors. It is clear your offending has taken a toll on the psychological wellbeing of the complainant may be long lasting.
[7] Exhibit B
Objective Gravity
15The maximum penalty for the offence is 25 years’ imprisonment. There is no dispute between the prosecution and your counsel that your offending can only result in a sentence of imprisonment with a head sentence and period that you must serve before being eligible for parole.
16Rape is also a standard sentence offence. The standard sentence of 10 years’ imprisonment is the sentence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness. It is thus a factor, like the maximum sentence, to be taken into account in the application of the intuitive synthesis approach to sentencing. Importantly, it is not intended to be a ‘starting point’ and does not permit some sort of ‘two stage’ process of sentencing.[8]
[8] McPherson v The Queen [2021] VSCA 53, [31].
17There are circumstances of mitigation that I will refer to later in these reasons that I regard as warranting a sentence below the standard sentence for this offence. However, it is important for you to appreciate that your offending is very serious. Imposing a gaol sentence is regarded by the law, in most instances as a sentence of last resort. The Parliament, however, regards rape as an offence that is so serious that it must result in a sentence of imprisonment.
18The complainant in this case was vulnerable. She was asleep and did not have the opportunity to resist you. She was in her own home and was entitled to feel safe in her own bed.
19I accept that there were no threats of violence by you and this was not a case where you persisted with a sexual assault after repeated utterances from the complainant refusing your advances. These circumstances are, however, more in the vein of the absence of aggravating factors rather than mitigatory factors per se. As was stated in the court of appeal decision of Mokhtari:
The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.[9]
[9] Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161, [41].
20The fact that you penetrated the complainant without a condom and ejaculated in her is an aggravating factor. It exposed the complainant to the risk of sexually transmitted diseases and pregnancy. It would also, in my view, understandably cause additional distress to the complainant.
Personal Background
21I turn to your personal circumstances. You were born in May 1996 and so were aged 23 when you committed this offence. At the time of sentence you are 27 years old. Your parents separated when you were four years old. You lived with your father for much of your childhood and had regular stays with your mother. You have a younger sister who is 25 years old and a younger half-sister who is 17 years old.
22You were brought up in the Northern suburbs of Melbourne and attended local schools, being Craigieburn Primary, Box Forrest High School in Glenroy and Hume Anglican Grammar. You experienced some bullying at school, and you described yourself to your counsel as being an average student. You remained at school until year 11 and then left to commence employment.
23Your work history is reasonable. You have worked in a printing firm for six months and as a ‘spare parts interpreter’ sourcing parts for truck repairs for approximately six years between 2012 – 2016 and later between 2018-2020. You also tried your hand at carpentry for six months in 2017.
24You experienced a period of unemployment in 2020, due to the pandemic, before resuming work sourcing parts again in the trucking industry. In 2022 you commenced an apprenticeship as a mechanic.
25You have a daughter who is approximately two years old. You were in a relationship with the mother of your daughter for approximately six months. You remain on good terms with the mother of your daughter and your counsel told me that when you are more settled in custody the plan is that your daughter will be brought to visit you.
26Your counsel Mr Sturges informed me that you have had a problem with drinking alcohol to excess and have used cannabis since the age of 15. You also began smoking methamphetamine at the same age.
27You have found the stress of these proceedings hanging over your head for a considerable period of time very difficult and in 2022 the trial of this matter had to be adjourned as you were mentally unwell. You were diagnosed with a drug induced psychosis and substance use disorder and spent time in the Northern Hospital. Your counsel relayed this history in reference to the delay that was caused in the matter being finalised. It was not submitted that your mental health issues were ongoing or had any other relevance to the sentencing exercise.
28You have no prior convictions. Tendered on your behalf were a number of character references. Your aunt has written a letter that clearly states that she has found it difficult to reconcile your offending with your previous character.[10] She states you have in the past consistently shown respect for women and demonstrated a strong sense of morality and empathy. Your cousin similarly describes you as a person of integrity with strong moral character.[11] Both of these relatives are firmly of the view that you are unlikely to reoffend. Also tendered was a letter from a previous employer who knows your family and is willing to let you resume an adult apprenticeship in auto electrics upon your release from custody.[12]
[10] Exhibit 3
[11] Exhibit 4
[12] Exhibit 6
29Your counsel also tendered on your behalf four certificates of courses you have completed since being remanded at the conclusion of your trial.[13] Your counsel told me that you were attending the gym in custody and making an effort to lead a healthier lifestyle. Your counsel also told me (and I accept) that you have not had an easy time in custody and had to spend some time in protective custody as a result of being threatened by another prisoner.
[13] Exhibit 5
30I accept that your family is supportive and have been visiting you and trying as best they can to support you during your period of imprisonment. Those circumstances in my view enhance your prospects of rehabilitation.
Circumstances of mitigation
31There was no real dispute between your counsel and the prosecutor regarding the following factors in mitigation:
(a) You were a youthful offender at the time you committed this offence.
(b) You have no prior convictions and are to be regarded as a person of previous good character
(c) The offending can be characterised as opportunistic without any real sense of pre-meditation.
(d) Your background and youthfulness at the time of the offence suggests your prospects of rehabilitation are at least reasonable. I would characterise your prospects of rehabilitation as good.
32The delay between the offending and you being sentenced has been approximately three and half years. Although some of that delay was due to you becoming mentally unwell, much of it was caused by the unfortunate realities of the criminal justice system. This court has recently encountered difficulties in conducting jury trials. Part of the punishment you have served is to have the uncertainty of your future hanging over your head for a considerable period of time.
Analysis
33Mr Schiffel, the purposes for which a court may impose sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances as well as current sentencing practices. The prosecutor pointed me to one County Court decision that had some comparable features,[14] but of course every case must be determined according to its own unique circumstances.
[14] DPP v Flanagan [2023] VCC 576.
34The sentencing exercise in your case is difficult. You were only twenty-three when you offended. The courts have recognised that young or immature offenders may be:
‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgement and self- control that is possessed by an adult … they may not fully appreciate the nature, seriousness and consequences of their criminal conduct’.[15]
[15] Azzopardi v R (2011) 35 VR 43, 53 [34].
35It is not in dispute that for younger offenders a sentence that promotes rehabilitation is a very significant consideration as it is in the community’s interest that young people rehabilitate and become contributing members of the community. These statements, it can be fairly said, become less of a consideration the older the offender becomes. You were not a teenager at time you committed this offence, you were 23 years old. Nevertheless, I regard these types of considerations, as being relevant to the sentence that I will impose upon you. These considerations of course must be balanced against the seriousness of your offending and what I have found to be a significant level of moral culpability for taking advantage of the complainant when she was asleep.
36I accept the prosecution submission that general deterrence is a significant factor in this case. Your conduct must be denounced, and it must be made plain by the courts that those who take advantage of people who are asleep by using them for sexual gratification will receive stern sentences.
37As I have said, I accept that your prosects of rehabilitation are sound, and for that reason, less emphasis can be placed on the importance of protection of the community and specific deterrence as sentencing considerations. As I have already indicated, because of the circumstances of mitigation referred to above, I have determined that your sentence should be significantly lower than the standard sentence for rape.
38Taking account of all relevant matters, the submissions of the parties and balancing as best I can the various sentencing considerations, I have determined the appropriate sentence is as follows.
39In respect of the charge of rape you will be convicted and sentenced to 5 years and 6 months imprisonment. I declare that you must serve 3 years and 6 months of this sentence before being eligible for parole.
40Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) I declare that the period of 79 Days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
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