Director of Public Prosecutions v Seccull
[2021] VCC 1558
•18 October 2021
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JON SECCULL |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne (via Webex) | |
DATE OF PLEA HEARING: | 30 August and 27 September 2021 | |
DATE OF SENTENCE: | 18 October 2021 | |
CASE MAY BE CITED AS: | DPP v Seccull | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1558 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Damien Hannan | Bianca Kelly, OPP |
| For the Accused | Chris Pearson | Manny Brennan |
HIS HONOUR:
1Jon Robert Seccull you were convicted by a jury verdict in relation to charges that arise from four separate incidents between 2011 and 2015. In each of these separate events you were convicted of rape. The victim was your then wife. In relation to 3 of these incidents, apart from rape, you were convicted also of assault or making a threat to inflict serious injury or a second or third rape on each occasion. As will become apparent from the enumeration of the charges the indictment also contained other charges and you were either acquitted or not guilty verdict was entered by direction. These were charges number 1, 2 and 9 on a 15 charge indictment. In all you were found guilty of two assaults, one threat to inflict serious injury and nine rapes .
2I will summarise each of the charged events and the component charges for purposes of the sentence. This will necessarily be not a concise summary. The nature and objective gravity of your offending can be adequately understood only when placed in the full context and background to your relationship, in the way in which it paints a full picture of both the commission of the offences and the ongoing nature of the impact on the victim in a cumulative sense.
3I want to make absolutely clear that the sentence which I will impose upon you is directed only to the offences with which you have been charged. The narrative as to the context and background assists in the understanding of the offending and a proper evaluation of its objective gravity which would otherwise be conducted in a vacuum.
4This case was unusual in the sense that in order to gain a proper appreciation of the offending there is in my view and need to describe in detail the events which occurred, to which I would not usually descend to describe much of this relevant material.
5Michelle Miriam Skewes[1] met you when aged 20, in the year 2000. She attended at the local fire brigade service and you were a member there. You married in 2003. You had four children from the relationship.
[1]Ms Skewes has provided consent to being identified in these remarks.
6You separated in 2016 and divorced in 2019. Ms Skewes gave evidence that before the marriage you had been loving and caring towards her, however becoming gradually more controlling and obsessive as to who she kept company with and her whereabouts. After the marriage that developed into directions as to who she could and couldn’t see. Her duty to stay at home was reinforced by abusive oral directions, texts and emails. Relevant to the significance of the offending was her agreement to have sex before marriage. It was always what you wanted, and that included anal sex which she took part in a couple of times. before telling you that it hurt, that she had bled, and that that sexual activity was not happening again. On your part, despite that indication, you wanted to do it again the next night, which she refused. If she refused anal sex she’d have to give you oral sex. She consented to your sexual demands at that point, as she felt she really had no choice.
7Before marriage Ms Skewes worked at a hospital and had started a nursing degree. When she could not afford to finish that degree due to money constraints, she obtained a job at the hospital again. As children arrived, your enthusiasm for sex increased and you complained of her lack of enthusiasm. You criticised her constantly, belittling her, the way she looked and dressed. She was too loud, too fat and needed to look good for you. Sex was used as a validation for you, as a gesture of gratitude owed to you, to assuage your anger or sadness, to repay you for merely performing the duties of a husband. If, according to you, you were made to do something you didn’t want to do, like visiting the family in Adelaide the cost was oral sex, and if she spent too much time at her parent’s or her sister’s or she went to see friends by herself, the result was the same. She was not in a position to refuse. You criticised her for not being sexually adventurous and you wanted her to explore your mutual fantasies. Your fantasy was to see her have sex with another man. That was refused by her at first, that suggestion having been made in 2003 soon after the marriage. That demand persisted and escalated. The watching of pornography at your suggestion and instigation became central to your sexual relationship, with the sex depicted and viewed usually degrading and gross in content, she said in evidence. When in 2008 she confronted you with not only about your substantial use of pornography but about text messages and video messages sent and shared with other women, you retorted that “you don’t give me what I want, so put up with me watching this or you put out with what I want”. In order to keep the relationship and family intact she agreed to try.
8There is nothing illegal or criminal in any of this unusual, highly sexualised conduct. But it is part of the factual matrix in which to properly understand the offending which followed. You characterised it in your evidence before the jury as a mutually agreed ‘open relationship’. Michelle Skewes experienced it as avoiding failure as a wife of a disappointed husband. Your main wish was for her to sleep with other men and stream that activity back to you. She agreed. You arranged it numerous times, through forums or like social networks. You insisted in this endeavour to which she subjected herself to please you, after being told to go out to pubs to try to pick up men there.
9One such meeting was finally arranged by you with a man named Cole. You had pre-organised to have live streaming back to your home by way of a video camera so you could watch at home. In April 2011, Michelle Skewes had a sexual encounter with Cole. You were “over the moon “about it, you said. You organised for her to go back the next night. However, having set this up purportedly to fulfil fantasies of yours, when you learnt that your wife had organised to meet Cole again by herself, your reaction was at first equivocal and surprised: you were not happy. Ms Skewes went to Cole’s home and then returned. This was the first incident which eventuated in your offending.
10When Michelle Skewes got home you opened the back door to your home without a word, angrily reached behind her, grabbed the back of her shirt, pulled her inside to the laundry by force, pushed her in front of you, ‘frog marching her’ was her evidence, into the bathroom. Once there you pushed her over into the bath fully clothed. She was on her knees in the bath and you were standing next to her. You then urinated on her as she knelt in the bath. You urinated on her head and face, told her to open her mouth and you urinated all over her. You were yelling that you always knew she was a slut and a whore, and she had proven that she was. And she needed to be punished. You told her “you need to keep doing it”. You had video of what she had done, you said, and this was what was going to happen from now on. If she refused or tried to leave, you would show the video to her family and to her work or whoever, to get her to do it again. The urination was charge 3 of common assault. You told her if you sent her out and she failed to get what you wanted, she should be punished and this would be the punishment. While calling her vile names, you climbed into the bath, grabbed her head, pulled it down onto your penis and said “you’re going to be gagging whenever I want, you fucking little slut, you cunt, you whore thing”. You kept pulling her hair harder and harder while you penetrated her until she started gagging.
11You told her “that’s what you need to do you fucking little cunt”. She vomited. This was charge number 4 of rape. “That’s going to be your punishment. You keep doing this when I tell you to, or this is what’s going to happen to you”. This rape and assault could not in any way be seen to be part of role-playing or a fantasy being acted out pursuant to some sadomasochistic pact or mutually agreed unusual sexual lifestyle. This was a brutal, brutish, cowardly rape encompassing punishment, admonishment and anticipated terror for the victim. This was a violent assault for your sexual gratification and probably other perverted pleasures and an act of oppressive subjugation of your wife. It was humiliating, degrading to her and the indignity inflicted is of the highest order.
12it is difficult to find adequate words to describe these acts and what followed as anything but the degenerate intentional mortification of a person, demeaning, debasement or whatever other descriptions are apt the describe these vile sadistic acts.
13Michelle Skewes vomited three times all over herself and on your front. You stepped out of the bath, you took your track pants off, and left them in the bath. It took your blue singlet off as well. You then pulled your wife up to stand. Ran your hands down her sides, reached around and squeezed very hard on her breasts until it hurt. This was also an assault, charge 5. You undid her jeans and said “take them off, I’m going to show you what this punishment is “, you then pulled down her pants and underwear and pulled her out of the bath. You took her T-shirt off, grabbed her bra and undid it. You then pushed her over on the basin, grabbed the back of the hair and pushed her down. You licked your fingers and pushed them into her anus charge 6 rape. You then grabbed her head and penetrated her anus with your penis charge 7 rape. You called this “a proper arse fucking” that was to be the punishment. The rapes were accompanied by a stream of vile insults and name-calling. “This is so fucking hot, and I get to do it and you’re going to keep doing it” you said. Michelle Skewes said yours was a verbal tirade. You ejaculated in her anus. She said when it was over, she felt like an absolute piece of shit. Sadly, an apt description of how you had treated her. Apart from a noise she made when you squeezed her breasts she didn’t scream, because she felt if she had let you know that you were hurting her you would have just kept going, because it was clear to her that hurting her was what you were actually getting off on. You ordered her to clean herself and the mess, and you walked out leaving her bent over the basin. She showered and cleaned up, bewildered and in shock at what had been done to her.
14Following these shocking events, by way of electronic communication, texts and emails, you told Michelle Skewes that you had not expected her to enjoy it so much, by reference to what you had asked her to do by seeing other men, and that you didn’t think she would have done it so often, while you acknowledged that you were the one who had pushed her into this activity. You told her that you were “probably wrong” to do what you had done to her the night before but you had wanted to do it for a long time and you asked to do it again because it was a fantasy of yours and you enjoyed it. Before these emails you had accused her of cheating. She had replied that “randoms” did nothing for her and she didn’t see why she had to go to others because you wanted her to, but that what you had done was a big wake-up call and she deserved it. In her emails she reiterated her failings in the context of the house and the relationship, in order to placate you and she gave evidence that by this time she felt trapped and broken. You had a video. She said she felt ashamed, like a nothing.
15Though it was rough and degrading, she continued to have sex with you, while being covered with insults and used as punishment. After Cole you encouraged her to find someone else constantly. There were many such occasions organised for your pleasure and you berated her when she met someone, but no sex followed. You sent her out “to achieve” with other men and provide proof. She often resorted to creating false photographs of her in different places with a substance on her to make you believe it was ejaculate on her face or breasts, to satisfy your demands.
16In 2014 Michelle Skewes met a man called Sean on Facebook. He lived in Queensland and she met him there on one occasion in February of that year as part of your wish fulfilment. You knew of these arrangements and the streaming of sex to follow. Michelle Skewes gave evidence of your fluctuation between excitement and trenchant criticism. This was the following incident which was covered in the indictment charges 8 and 9 both rapes. Before leaving for Queensland, among verbal belittling and insults, you had what she described as rough degrading sex during which you said, “if I fuck you up enough, you’re not going to be any good”. You said to her not to fall in love, to which she replied that she had no intention of doing so.
17This kind of prevarication between you wanting her to see others but only at your discretion, was disorienting and entirely at your whim. If she complied you were happy, if she complied you insulted her as a whore and a slut. If she refused that would not be acceptable and required punishment. Once she left for Queensland you bombarded her with texts, asking her if “she’d done it yet”. When she returned from Queensland you picked her up from the airport in a sullen mood. A sexual encounter had taken place and streamed to you. You complained that it was “too nice”. She felt she was never going to meet your expectations. When you got home you went into the bedroom and said to her “this is not acceptable, you need to be punished”. You went over to her and pushed her back onto the bed. You knelt on it, grabbed the back of her hair and pushed her head onto your penis. You said, “you’re going to find out what face fucking is” and proceeded to penetrate her mouth until she vomited, while you uttered a constant stream of abuse. You have then pulled her up by her hair, pulled her back towards you, you her turned around and penetrated her anus until you ejaculated. When you’d finished you told her to clean it up.
18The third incident subject of the conviction on charge 11 rape, arose in 2015. Michelle Skewes developed friendships with a group with a common prosocial interest in craft beer. On this particular night in April 2015, you were drinking together. Michelle Skewes thought you drank too much, far too regularly, but you denied having a drinking problem. On this night you had about 8 to 10 beers which you said, “did not overly affect me”. You were adamant she had to drink with you. She usually had one. This night she had three. During the evening a female friend rang her asking if it was possible for Michelle to come to pick her up because her car had broken down. Ms Skewes apologised and explained that she was unable to do so because she had been drinking and could not drive. When she got off the phone, she said to you “this is why I don’t have multiple drinks” because it had prevented her from helping her friend. You said something to the effect of ‘what’s wrong with having a couple of drinks with the husband?’ She answered “nothing, except I don’t like drinking too much and I like to be able to drive”. It was around eight or 9 PM. You snapped. You said “just letting you know you’ll be sucking my cock later” and you added that she was absolutely stupid and “fucked in the head” because people walked all over her and laughed at her and that she was a useless cunt of a thing. She was feeling guilty, saying there is nothing wrong with being a good person and wanting to help people and not wanting to get drunk.
19She stormed off to bed. She was in her underwear. She gave evidence that you didn’t like her wearing clothes in bed. You were talking to yourself out loud, rambling vitriolic insults. You went towards the bedroom, then calmly asked “what’s made you flip out like that?”. She said “you”. She then noticed that you were filming her using your phone. She got angrier. She asked you to stop recording and told you to get out. She tried to shut the door, but she couldn’t because you were stopping her. You kept filming, video footage which was shown to the jury. You were saying” This is awesome, I’ve got footage of you being a fucking psycho”. She recalls hitting your arm to try to get you to stop filming and you threw a small metal box onto the bed which you said she had hit you with. She felt guilty about her own angry demeanour and was regretful. She had a small cut above her eye which she didn’t know anything about. She rolled away from you in bed covering herself with the blanket.
20Some time elapsed before she heard you return to the bedroom and she pretended to be asleep. You went over and ripped the bedcovers off the bed, grabbed her hips, ripped her underwear off while repeating foul insults, you removed your track pants, pulled her legs apart and you put your fingers into her vagina. Earlier in the evening as she retired to the bedroom, she had made it clear what her position was as to sex by saying “your chance of getting anything tonight is zero”. Then you put your penis into her vagina while murmuring abuse. You ejaculated, rolled over and went to sleep. There had been messages sent to her by you between the first discussion and the time you came into the room while filming her.
21The day after these events you messaged her again and said “I should have sent you out and this wouldn’t have happened” that is: if you had been sent her out to pick up men, then she wouldn’t have been home to take the call from a friend. You then threatened to leave her. The next day nothing was mentioned, until you sent messages of a sarcastic derisive tone, repetitively mentioning that she had hit you.
22Michelle Skewes complained of this rape to a man in Sydney who she had contacted on Facebook. She said she confided in him because her father was a pastor and she and her sisters had grown up in the church and this was not the lifestyle that she had ever anticipated for herself. She considered this man in Sydney a close friend. She had met him in July 2014. The last incident giving rise to charges 12 to 15 inclusive occur in September 2015.
23A trip to Sydney with girlfriends, to farewell another who was going overseas was organised. She told you about it and you didn’t want her to go because you thought that she didn’t deserve to go and was going to meet her friend in Sydney for sex. You said it was too expensive and that she was useless, that she should charge men to have sex with her and so she could prove she was a whore by taking money. You drove her to the airport, during which there was a tirade of insults from you to her. In order to be allowed to go to Sydney you had arranged for her to trawl for men almost every day that week. You had watched these encounters by webcam. You said she had no right to think that she should be allowed to go anywhere and do anything, and you would “fuck her in every hole so she was no good to anyone”. Before deciding to drive her to the airport you told her that she couldn’t drive herself because the car belonged to you and you would report it stolen if she drove it. You drove her, with the children in the car. She gave evidence that you drove “like a maniac” intentionally, and she was terrified. There was the usual stream of abuse. You gave her $100 that she would have to ‘repay in blow jobs’ and while she was in Sydney you sent her a constant stream of texts as to how to make it up to you for going away. These messages continued the next day, asking who she had been with and if she had been with the Sydney man. Michelle Skewes didn’t spend the night with anyone.
24On returning from Sydney, she was driven home by a female friend who also gave you a lift into town, to go to a pub. You were angry. When you got home, Michelle Skewes put the children to bed and went to bed. You came into the bedroom and calmly asked her to get up as you needed to talk. You stroked her hair gently. You said, “you have no idea what’s going to happen, how dare you think you can go away and do anything at all and spend my hard earned money”. She asked you not to touch her. You said, “if I can’t have you, I’ll make sure nobody gets you”. She was petrified and ran out of the house in her underwear and locked herself in the caravan which was parked in the backyard. You were yelling “kids, mums left you, she doesn’t love you”. You went out of the caravan and banged on the door. You smashed through the bottom panel of the door, reached in, opened it and came inside. Ms Skewes was sitting on the bed. You said, “I’m your husband and I can fucking touch you whenever the fuck I want, you’re mine and I get to do whatever I want to you and you don’t have a say in it”. You mentioned that your family was in the police force and said “who are they going to believe, me or you? You’re just nothing but a fucking nutter, they’ll take you away, I’ll make sure they take you away if you dare call the police”. Michelle Skewes said that if you didn’t step out, she would get an intervention order and she ran out. She got in the car and drove off, wearing only her underwear. You kept messaging her until she returned. She went straight to bed. You were in the kitchen drinking and insulting her loudly. You then went out to the shed and came back. You said “you are the lowest fucking cunt on the face of the earth” while you were holding a long firearm. You said, “you’re a complete and utter waste of oxygen, you need to be put out of your misery”. You then chambered a bullet into the rifle by actioning the bolt. You were in the doorway. After some time, you ejected the bullet and threw it at her saying “you’re not worth the cost of this bullet”. The bullet hit the headboard and fell on the bed. Michelle Skewes picked it up and as she did so you said, “how does it feel to be holding the last thing that’s going to be going through my head” and then added “I’m going to do it in the fucking driveway and the kids can find me and you can tell them that it’s your fault, because you’re a fucking slut”. You stepped towards her saying that you were going to completely fuck her up and smash her fucking head in and put her in the ICU, and then you would go out with a bang. She thought you would kill her that night. Charge 12 of threat to inflict serious injury.
25You went over to the bed, pulled the covers off her and pushed Michelle Skewes into the middle of the bed. You ripped her underwear off, pushed her legs apart while still ranting at her, you then penetrated her vagina with your penis, then pulled out, rubbed her anus with your fingers and penetrated her anus with your penis while she was on her back, then penetrated her vagina again. You kept saying that she’d have to get used to it and provide whatever you wanted. After ejaculating you rolled over and went to sleep. The next morning you sent her message that “it was a once off thing, I was mad”. She answered, “it’s not a once thing”. Charges 13, 14 and 15 of rape. Thereafter you told her to leave her beer group and all friendship groups, because she had to be home, to prove to you that she was actually dedicated to you and wasn’t allowed to have interactions with other people.
26I have set out the nature of the offending in this detail within the broader context in order to properly frame any objective assessment of the offences themselves. I emphasise again, I am not sentencing you specifically for the context material which in most instances, though repugnant conduct was not criminal in nature and not the subject of criminal charges. There are some exceptions to this, in that some of this conduct constitutes in my view aggravation of your offending and I will indicate which facet is of this nature.
27This offending leaves the Court bereft of adequate words to describe its moral depravity. Even after many years of criminal law such abhorrent conduct is breathtaking. It is simple enough to list the features of this offending which render it objectively very serious: each episode was not of brief duration; some of the episodes contained more than one rape; each rape was accompanied by violence beyond the violence of the penetration itself as a violent act; the victim was vulnerable not just because of her much smaller physical stature than you, but because she had been much reduced by humiliation and indignities; you ignored her protestations and her pleas to stop and her clear rejection particularly of anal sex.
28From the standpoint of aggravation I consider these aspects to bring this offending into the upper reaches of sexual offending: it was committed upon your wife in a breach of trust of the most fundamental kind. This was the complete perversion of what that relationship imports for its participants: trust, protection, affection and love. You gutted the relationship of these aspects by your criminal conduct. There were breaks in the offending, times for reflection and self-containment, to desist from a particular course. But you did not desist. You contumaciously returned both within each incident and after a period of time to further offend. A crime that is repeated is grave indeed, as is your moral culpability ( Delictum iteratum gravious est). The overall timeframe over which the offences occur, which spans years, is in my view aggravation. See [DPP v DDJ] [2009] VSCA 115. In each episode there are clear indications of premeditation. These were not spontaneous instances, responsive to the instant, but brooded upon and thought about, in response to long-held fantasies and cruel desires. The production of a weapon aggravates in my view both the threat charge as well as the three rapes in the last episode. Lastly the humiliation and degradation and cruelty which accompanied each episode is a matter in aggravation. Of all depraved traits, cruelty is the most difficult to comprehend, particularly when your victim is a spouse. The context and background material places your offending at the focus point of deliberate and calculated intent to deliberately diminish the willpower of Michelle Skewes who typically neither trusted herself nor you. This went beyond unjust and callous use of force, which violates another person’s rights and sensibilities and which hurts as all violence does, rather it was cruelty intended to cause pain for your own pleasure and for your own gratification, as the victim attempts to salvage some dignity for herself.
29In recent times, as has been reiterated by the Court on numerous occasions, our society has been gripped by another epidemic of vast proportions: domestic violence. Too often, the community witnesses the aftermath of men asserting ‘their right’ over their own partners, expecting compliance and dutiful obedience. Rape not only violates this relationship of trust and protection but the physical, emotional and psychological integrity of the victim. You did this even in the face of what must have been a clear awareness on your part of your wife’s ongoing terror and desperation at the prospect of your abuse, even as you exercised dominion over a person to whom you owed a duty and moral obligation to protect: see [Pasinis v R] and other cases mentioned below.
30Ms Skewes produced a victim impact statement which she read out to the court. Before referring to that document I note that any impact upon her of the offending has been made more profound by the necessity of giving evidence in Court. The trial process can be difficult and stressful. Recounting the type of events involved is a process that often translates into further trauma. She gave evidence from the 20th to the 31st of May 2021, with cross examination beginning on 24th of May. The trial culminated in an address to the jury on your behalf in which her mental health and honesty was put in question, and in which she was described as a hateful, smug, hysterical, demonic, pathological liar who was “evil incarnate”, like a character in East of Eden a characterization proffered by your counsel in his final address, descriptions one might conclude rejected by the jury.
31Much like her evidence, the victim impact statement is candid, honest and disarming in its dignity and insightfully eloquent. She wrote to explain the unexplainable and this is only a summary: she writes of the struggle to turn away from and shut off the abusing rhetoric and poisonous words spat out at her every day by you, in order for her to find some sense of worth. Many events, even small or brief , will transport her back to moments of fear and terror at your hands. Possibility of vomiting triggers panic, she apologises for everything, and her self-esteem is still broken by humiliation and shame. She is hypervigilant, naturally distrusting of others, anxious about her physical health, plagued by nightmares and exhaustion; she has suffered the besmirching judgement of others as if her abuse disturbed an idyllic public picture of her marriage and she is endeavouring to shake off the blame and reconstruct instead a severely damaged life. These sentiments are those which the Court hears practically every day, in the profound and moving statements of victims. The Court has many aspects which it must address, and one of these important matters is the social rehabilitation of victims, by way of just punishment and retribution for the damage which offending like yours does to victim’s lives. Rehabilitation comes from the Latin “habilis”, ‘to invest again with dignity’. The impact statement which was read was heard, the impact was understood and will be taken into account.
32In its submissions as to sentence, the prosecution referred to what it said were comparable cases, so as to inform current sentencing practices, one of the matters to which the Court has regard in the instinctive synthesis. The primary case which was referred to, with a number of other decisions was [DPP v.Patil],[2020] VSCA 337. It was acknowledged that sentences are not precedents, that limitations exist to the comparative exercise and that each case turns on its facts. I have read again each of these authorities and many more.
33The defence upon the plea dealt in turn with each of these cases which the prosecution mentioned and conceded that the cases of [Johns][2016]VSCA 97 and [Forbes v R][2018]VSCA 341 indicated substantial terms were likely. The defence however argued that [Patil], above, was not comparable, because of its different factual matrix.
34I will set out the other cases to which I have referred. These cases provide guidance only and are of limited utility given the variety of circumstances and considerations in each case, but the selection of a sentence involves a judicial discretion in each case which is informed by the nature and circumstances in which the offences were committed, and the character, antecedents and circumstances of the offender: [Zhuang] [2015] VSCA 96. Such examination goes beyond its rationale when it is used to fix boundaries to bind the Court: [R v Dalgleish] [2017] HCA 41, but may establish the range of sentences which have been previously imposed: [DPP v Thomas] [2016]237.
35I have examined the following cases for the purposes and guidance I have mentioned: [DPP v Jurj] [2016] VSCA 57; [Gordon v R] [2013]VSCA 343; [GC v R] [2013]VSCA 139;[Johns], above;[ Samuels v R][2019] VSCA14; [DPP V Mokhtari][2020]VSCA 161;[DPPv Patil], above; [Flynn v R][2020]VSCA 173;[Forbes],above;[Morello v R][2020]VCC 1835;[DPP v Brewer][2020] VCC1986;[DPP v Granata][ 2016]VSCA 190;[Pasinis][2013]VSCA97;[DPP v Smith][2019]VSCA266;[Degney v R][2019]VSCA183;[Baker v R][2019] VCC 2096;[Torrefranca v R][2021]VSCA 157;]Filiz v R][2014]VSCA212;[Zhao v R][2018] 267;[Bolton v R][2019] VSCA21;[Wheeldon v R][2018]VSCA344.
36Common-law assault carries a penalty of 5 years imprisonment , as does making a threat to inflict serious injury. Rape carries a maximum penalty of 25 years imprisonment. By the provision of these maxima the legislators have reflected the gravity with which the community views such offending. These are guideposts to be taken into account in the complex exercise of the instinctive synthesis which I have undertaken.
37I take into account your personal circumstances: you are 43 years old, the oldest of three children. You are close to your parents and your sister and your experiences in the family environment, as set by you, appear to have been good and untroubled by dysfunction, disadvantage or domestic discord. Your parents, though now more frail, remain active and are supportive of you. Your father served as a policeman for a period of time, as well as working for correctional service.
38You completed your secondary education in Ballarat without disciplinary issues, with average grades. You then had a number of labouring jobs as well as in hospitality and security. At age 21 you obtained employment with Corrections in 1999 and you worked within that environment until 2016.
39Your relationship with Michelle Skewes was your first and only intimate relationship of any substance. You married in 2003 and had four children of that union. You have not used illicit drugs. You reported only social use of alcohol and noted for Ms Laura Fleming, a forensic psychologist who assessed you, that your use never caused impairment in functioning, although your counsel upon your plea did accept your use of alcohol was heavy.
40Ms Fleming prepared a report dated 21 July 2021. She summarised your personal history and other aspects. She wrote of the loss of your three-year-old son, in a tragic accident. You reported experiences of grief and traumatic symptoms following this loss. You told her you had been diagnosed with post-traumatic stress disorder and had engaged in therapeutic intervention for some 12 months. You said you still experience chronic poor sleep and nightmares, related to this event.
41Your reported sadness and grief due to the limited contact you have had with your children since the marriage breakdown in 2016. As to your relationship, you denied any sexual violence occurring in it at all. You asserted you mutually agreed to a “open relationship” from 2011 due to ‘staleness’ in the marriage and denied forcing this decision on your wife. You told Ms Fleming the separation and ultimate divorce came as a surprise to you and that consequently your ex-wife made attempts to secure full-time custody of the children by complaints against you, which were her way of punishing you and to prevent you from having custody of the children. I reject that assertion. You asserted not only that her parenting was below par but that all witness for the prosecution had lied at trial. In the face of the evidence which was heard during the trial, these continued assertions appear to reflect what was candidly put at plea on your behalf, as your ongoing state of being in denial of the facts.
42When you were interviewed by Ms Fleming, while displaying a limited range of affect you were preoccupied by negative evaluations of your wife. There was no cognitive or memory concerns, your judgement appeared intact. Ms Fleming administered the Millon Clinical Multiaxial Inventory Assessment Test for personality disorders and functioning. Your results suggested schizoid, histrionic, and antisocial patterns, evidencing social impassivity, lack of emotional reactions, a deep desire for love and approval and antisociality, marked by distrust of others. According to Ms Fleming you are an individual who has difficulty connecting with others, needing frequent positive feedback. There were clinical elevations of somatic symptoms and alcohol use and post-traumatic stress and general anxiety on a moderate level. Overall, these results were indicative of trauma, unhappiness and an underlying personality pathology, which likely impacted your functioning. You exhibited symptoms of post-traumatic stress disorder. As to risk assessments, Ms Fleming administered the Level of Service Case Management inventory protocol which evaluates general recidivism risk. This indicated a low risk of general recidivism. She noted importantly that a specific sexual recidivism risk tool was not utilised, due to your denial of the offences and difficulties in obtaining specific information around your sexual behaviour during the interview. She concluded your personality pattern makes it difficult or unnecessary to make friends , that you need to be seen as self-assured, while externalising blame for any difficulties. No specific diagnosis was suggested by the assessment. She opines that you were experiencing symptoms of post-traumatic stress disorder related to poor or no sleep linked to the passing of your son. She relates those symptoms to the period of offending on your reporting. Ms Fleming writes that such symptoms may be relevant as emotional dysregulation, impairment of problem-solving and a deterrent to prosocial responses. In my view your kind of offending goes well beyond any potential impact which post-traumatic stress disorder symptoms may have contributed to your conduct. While the loss of a child is an enormous tragedy for any parent to endure it was candidly conceded in submissions on your behalf that this provides neither an excuse nor even an adequate and acceptable explanation for the demeaning and brutal treatment of your then wife. Ms Fleming recommends a referral to a psychiatrist and pharmacotherapy, coupled with intensive psychotherapy, and psychological intervention. She also expresses an opinion as to imprisonment weighing more heavily upon you, due to concerns over your former employment. I will deal with this aspect in a moment.
43I accept that you have no prior criminal history and have been held in esteem in the community and among those who are family and friends, who in many letters of support have attested to your good character. I take these factors into account. The court received 11 letters of support. I have read each carefully. The publican of the Menangatang Hotel has known you for over three years and speaks of your as ready to help, and as a non-threatening or aggressive customer who “is a lawman”. Mr Findlay of Manangatang has known you for four years and says you love to help and talk to people. He says your character can be judged as good, because of his gut feeling about you, that you speak about your children often and that his German Shepherd dog displays a high opinion of you. Natalie Jones wrote that you are kind-hearted caring and humorous. Tracy Spiteri who worked with you in a prison environment, wrote that in her view you are gentle and compassionate. Your brother-in-law Mark Ciccarelli wrote you were kind and considerate. Samantha Guerts has known you for five years and wrote of your respectfulness, kindness and humour. Another co-worker Colin Block wrote of your demeanour and attitude at work and the impact on you of the loss of your son. Sam Wright has known you for two years and wrote of your helpfulness, his family has had you over for barbecues and sees new socially at the local hotel and they don’t believe anything that’s been said about you in Court is true. It is disappointing to have this calibre reference actually produced to the Court after a guilty verdict in such a long and complex trial and much evidence, about which the letter writer knows little. Your mother Julie wrote of you as a caring and gentle soul, pleading to the Court out of motherly love. I take these expressions of support into account. They indicate that you have ongoing support, which will be important during your years ahead whilst in prison and thereafter. I also take into account that you participated in the important work of encouraging organ donation, consequent upon the experience with your son, through the Commonwealth Department of Health and an agency in which you sat on the Board of Governance, for some eight years which is to your credit.
44I take into account the delay in this case and the additional impact of having these matters hanging over your head for a substantial period. You were charged in 2016. However the process of taking the victim’s statements was not completed due to its complexity and length until April 2017 and then September 2019, when the matters were ready to go to trial. Although it is true that disclosures of this kind often do take considerable time to be fully compiled, I do take into account the delayed this has caused. This was then followed by delays occasioned by the impact of the COVID19 pandemic upon the Criminal Justice System. This has caused substantial delay which I have taken into account. This matter is of course to be dealt with and given appropriate weight by considering the factors which delay gives rise to: see [Tones] [2017]VSCA 118, that is considerations of fairness and the impact of rehabilitative efforts undertaken. To this last rubric, no further offending is one aspect, as are the references tendered from those who have written on your behalf. I’m not in a position from these two aspects to make any conclusion as to your rehabilitation given your stated lack of acceptance of the verdict delivered by the jury. Suffice to say I am unpersuaded that these demonstrate any level of achieved rehabilitation in the relevant mitigatory sense. Less than full weight is accorded by me where reliance is placed merely on abstinence from further offending, while giving appropriate weight to your past good character.
45I take into account that you appear to have demonstrated a good work ethic in a difficult and particular environment of Correctional facilities. This extends over a relatively long period which is to your credit.
46It was a significant submission in your plea that because of your previous employment your custodial experience will be far more burdensome and punitive that is the case for other prisoners. Ultimately it was put that you were “in a regime where you are isolated from all but a few fellow high protection prisoners, a situation that will prevail for the foreseeable future”. It was argued those more restrictive conditions of imprisonment meant that “a level of moderation in the prison term imposed should be allowed”.
47The first thing to be said about this is that it follows from your previous employment that some measure of awareness and care in your status and the level of adequate protection to be extended to your custodial arrangements are matters that are relevant and which I have taken into account. However, the material produced in response to this issue being raised during the plea, in my view, does not bespeak of a need for significant moderation of sentence under the circumstances. Ongoing anxiety over safety and vigilance may render reclusion more burdensome and as much can be accepted. However your past intimate knowledge of the environment and its intricacies, coupled with the responsiveness of prison authorities to your concerns and actual prompt positive steps to place you in the most protective and safe environment within the confines of the prison, was demonstrated by the content of the affidavit of Jennifer Hosking who is an assistant Commissioner in the Sentence Management Division of Corrections. She is greatly experienced and responsible for the oversight, management and placement of prisoners within the Victorian prison system. I will not recite the contents of a comprehensive affidavit, which was tendered as an exhibit, but the salient parts of it were that your status as a protection prisoner was identified at reception and you were separated pending placement.
48Over the next two or so months the Sentence Management Panel and Case Review Committee met with you on eight occasions to discuss what was said to be your desire to be accommodated in a particular area. By the end of July that placement was endorsed. That is in a unit with a small number of prisoners. You are satisfied with that and expressed the wish to participate in education programs, although you didn’t think you needed to speak with a clinical psychologist, and you received a medium security rating. In that unit you have 10 hours out of cell time. Ms Hoskins wrote that protection status does not require restricted living conditions and such prisoners are typically placed with other classified protection prisoners and “in conditions which are substantially the same as those in which mainstream prisoners are held”. There may be a limit on the number of prisoners available for mixing. Approximately 27% of all prisoners are held in protection and while they are in all levels of security, prisoners who are classified as protection prisoners are still able to access programs and services at a generally equitable level of mainstream prisoners. Currently you are in a prison which accommodates medium with minimum-security prisoners. All the prisoners there are in protection and are able to mix with almost the entire population of the prison and access full range of services including medical services, visits and recreation.
49The other side of this coin which I do take into account and which does require some moderation of your sentence is the current situation related to the pandemic. Visiting by persons has been curtailed or will be for the foreseeable future, though I know provisions have been made for use of iPads and computers to facilitate video visits. Recreational opportunities are subject to some restrictions. Although there are programs delivered remotely, these have also been impacted. Movement or transfers within the system may require isolation in quarantine periods, with testing as required. These measures are dealt with in some detail in the affidavit of Ms Hoskins who noted as of 17 September 2021 that you had received the benefit of Emergency Management Days credits and may be eligible for more. Nevertheless, the reality of incarceration in these times is fraught with the risk of contamination and infection, as recently noted in New South Wales and in some local correctional centres in Victoria recently. I take this into account as adding to the burden of detention.
50As to your prospects of rehabilitation you submitted that they were good. Despite your background, lack of criminal record, work history, no significant mental illness and use of illicit substances, the one matter that stands in the way of this assertion is your utter lack of remorse or a skerrick of regret. In my view your prospects are guarded.
51You fall to be sentence as a serious sexual offender upon being sentenced to a term of imprisonment for the first two of the rape charges, charges 4 and 5, and you fall to be so sentenced for the remaining charges:7, 8, 10, 11, 13, 14 and 15. In accordance with section 6D of the Sentencing Act the Court, in determining the length of the sentence to be imposed, if it is justified in the matter, must regard the protection of the community from you as the principal purpose for which to impose a sentence and may in order to achieve that purpose, impose a longer sentence to that which is proportionate to the gravity of the offence, considered in the light of its objective circumstances. Neither has the prosecution sought a disproportionate sentence nor do I intend to impose it.
52As to accumulation and according to section 6E there is a presumption of accumulation to be applied to these charges mentioned. I am conscious that particularly given the number of charges I must apply the totality principle with care. As has often been noted there is a tension between the policy underlying section 6E and the principle of totality. That tension is often difficult to resolve and apply. As Justice of Appeal Redlich noted in [Gordon v R],above, cited in [DPP v Patil],above “as the objective gravity of the total offending increases, so will the degree of accumulation which is ordered, thereby providing a total effective sentence which will more closely correspond with both legislated policy underlying section 6E and the principle of totality”. This reflected the analysis by the High Court in [R H McL] [2000] HCA 46 , in which the Court noted the need to not undermine the legislated policy inherent in these provisions by applying totality as if those provisions were not law.
53I have endeavoured to heed and apply this guidance in relation to accumulation and concurrency. It was conceded by the defence that some measure of accumulation, in relation to each of the charges which made up each episode was appropriate, but that to a significant extent dealing with the offending as four separate episodes would safeguard the totality intent, by acknowledging the self-contained nature of each episode. However, it is impractical and difficult to deal separately with each episode, which would reduce the sentence to a mathematical mechanism. This, in my view, would lose sight of the aspect of Totality with which the sentence must comply. The cumulation I have imposed bears in mind community protection in this context and because of the large number of charges, I have approached the sentencing task according to the prevailing view that the individual sentence will reflect the gravity of the offence while the amount of accumulation on each of the charges upon a base sentence, which may appear in relative terms significantly lower, is primarily designed to achieve a proportionate total effective head sentence.
54I am conscious of the rule regarding ‘single transaction’ or ‘the one episode principle’ and the level of cumulation will reflect this. That two or more offences are committed close together however does not necessarily mean that they amount to a single transaction. Close proximity calls for a substantial degree of concurrency in the number of offences but also calls for careful scrutiny of the totality achieved. See [Flynn v R],above and [Wheeldon v R],above and [Bolton v R],above and [Zhao v R.],above,
55The nature of these offences I have noted above require the primacy of general deterrence. This sentence must send a clear and unequivocal message of deterrence that those who are like-minded to offend in this way, particularly men in the context of coercive control and domestic violence, must understand that their behaviour will be met by condemnation and denunciation as utterly unacceptable conduct and with stern and just punishment. The second principle to be similarly addressed is specific deterrence, to deter you from such conduct in the future. You must be dissuaded from the belief structure and framework of thought which enabled you to behave in this way, and deter you from ever contemplating committing such crimes in the future. In my view you present as a risk not only currently but in the future. That risk is sufficient to impose the restriction of registration upon you for that future and future intimate relationships, which in the face of your lack of remorse and your denial of the offending and the circumstances of your offending, all impact upon this consideration and onto your prospects of rehabilitation which in my view are guarded.
56In fixing a non-parole period I am conscious of the general range, in terms of percentages of a head sentence, and that there is no usual non-parole period. The High Court in[Power v R] [1974]HCA 26 long ago indicated the purpose of fixing a non-parole period is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom when appropriate, once the prisoner has served the minimum time which a judge determines justice requires that he must serve, having regard to all the circumstances of his offence. In doing so I looked at the factors relevantly before me to determine when you should be so eligible and rehabilitated through conditional supervision. I note that no steps towards rehabilitation have so far been taken and other purposes of sentencing that are relevant to fixing a non-parole period such as deterrence and protection of the community I have endeavoured to give their necessary weight: [Romero] [2011] VSCA 45.I will apply a non-parole period which represents, what in my view, is a predictable and consistent percentage in the vast majority of cases after a jury verdict in this Court.
57In this case the prosecution make application pursuant to section 11(1) of the Sex Offenders Registration Act 2004. The prosecution relies on the guilty verdicts on charges upon the indictment except for charge 12 which was a charge of making a threat to inflict serious injury. Each of the convictions for rape excepting charges 4 and 6 were committed by a person who by operation of the Sentencing Act is a serious sexual offender. While charges 3 and 5 are not Class 3 or 4 offences, reliance was placed on the conviction for these charges being assaults as being committed in circumstances “relevant to the purposes of the Sex Offender Registration Act”. Given that there are eight class 3 offences the reporting period under the order would be life, pursuant to section 34(4)(a) and (c) (i). In this context I was referred to [Sayer v R][2018]VSCA177; and [Blyss v the Magistrates’ Court of Victoria][2016]VSC , at455; [Bowden v R ] [2013] VSCA 382 and to [R v GJ][2008] VSCA 222 in relation to the applicable tests.
58The Prosecution submitted an application document, separate to other submissions on sentence, dated 26 August 2021 and argued that the offending involved multiple separate violent and forcible sexual offences spanning 4 ½ years. That offending involved degradation threats and derogatory language and a significant breach of trust within manipulative and controlling behaviour. It then outlined in detail the particulars involved in each episode demonstrative of this aspect, and it was submitted they demonstrated a sexually violent propensity. This was accompanied, argued the prosecution, by a body of evidence about the relationship generally which placed it in the context of abuse and demeaning conduct. The Prosecution highlighted the lack of remorse and insight and concluded that you pose a real risk to the sexual safety of one or more persons of the community.
59Your counsel on your behalf submitted such an order should not be made. The submission emphasised your age, lack of priors, your regard in the community and the asserted low risk of general recidivism contained in the report of Ms Fleming, psychologist, the lack of further offending and the lack of further allegations specifically against the victim, compliance with an intervention order amounting to a lack of basis for an order pursuant to section 11 being made.
60The Sex Offender Registration Act 2004 provides for the establishment of a register of sex offenders. It requires certain offenders to report specified personal details and to keep those details up-to-date. This reporting is to further certain objectives. Although there is an emphasis in the Act on the protection of children from such offenders, section 1 of the Act identifies the reduction in the likelihood of the person reoffending, the facilitation of investigation and prosecution of any future offence the person may commit, and the prevention of registered sex offenders from working in child-related employment. The second category of registrable offence, that is one committed by serious sexual offender for the purposes of section 8, is the category which relates to your situation and the making of the order under those circumstances is discretionary under section 11. Subsection 3 provides that the Court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt the person poses a risk to the sexual safety or one or more persons or the community.
61Whether to make a registration order involves a two-stage process which must be satisfied. The first matter of which I must be satisfied by the criminal standard is that you pose the relevant risk. Secondly exercising judicially the discretion proposed by section 11, I must determine whether in all the relevant circumstances to make a registration order. In identifying the risk I am not required to identify a risk to particular persons or class of people. Firstly the magnitude of the risk of which I must be satisfied beyond reasonable doubt is a real risk. That assessment requires a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which you have previously committed such an offence: [Nigro] [2013]VSCA 213 at[117]. A combination of these factors will determine whether the risk is of sufficient order to make the risk unacceptable. There is no requirement, I note, that the risk be probable or substantial. I do not determine the likelihood of the risk. The enquiry is directed not to the evaluation of the present risk of harm to the sexual safety of persons. You are about to be imprisoned and will presently pose no risk. Rather it is directed to the risk upon your release into the community: [Bowden v R] [2013] VSCA 382 at[37-37], that is, an evaluation of future sufficient risk, by reference to what is presently known remaining at the time of your release. The assessment therefore depends on the evidentiary material before me, with all facts indispensable to the state of satisfaction, proved to the criminal standard. In this context your prior history and your conduct since the offending are relevant. However, the circumstances of your offending and my evaluation of your prospects of rehabilitation, persuade me beyond reasonable doubt that you to pose the requisite risk.
62The offending here was very serious offending of high moral culpability, in breach of the fundamental trust relationship, the gross and repulsive, sadistic and punishing nature, which involves humiliation and degradation on your victim, showing total disregard for her well-being, physical and psychological integrity and dignity. You pleaded not guilty and have shown a complete lack of remorse and I consider your prospects guarded. The offending included instances not just of sexual exploitation but violence and threats, the production of a firearm, vile and controlling language, inducing of vomiting, the subjugation of the victim for power and for your gratification, the objectification of her, the involvement of others in the surrounding circumstances, the use of online connections, the use of pornography, the display of jealousy and vengeance conflated to create disorientation and confusion and the premeditated nature of many of these acts, all amounting to not a fanciful or theoretical risk to the sexual safety of others.
63At the second stage of the process, my task is to judicially balance the risk posed with the obligations imposed, which create restrictions on your freedom and autonomy of action. In my view the risk posed warrants such restrictions and they are reasonably necessary to give effect to the statutory purpose. This balancing exercise also involves inputting the gravity of the harm which the risk presents, to be balanced against the serious consequences for the offender. I have considered this aspect also, and conclude such gravity is of a serious order. I order that you be registered under the relevant provisions for life.
64I note that the defence submitted in writing that this application by the prosecution was an example of overreach, resorting to registration as a tool of punishment. I do not accept that the application can be characterised as such. While it is clear that on the basis of the objects of the relevant provisions the discretion to be exercised is not one which has anything to do with the imposition of punishment, I do not accept the order and its reasons as imposed are a zealous form of punishment, as opposed to a reasonable exercise of discretion directed at the purposes of the legislation. It is also notable that while Ms Fleming’s assessment of to your general risk of recidivism gave an indication of low risk, a specific sexual recidivism risk tool was not able to be utilised due to your current denial and difficulty obtaining from you specific information around your sexual behaviour. The lack of contrary evidence specific to the risk to be assessed, together with antisociality traits and underlying personality pathology mentioned in the report, strengthens the basis, in my view, of the evaluation I made under the criteria required by the Act.
Sentence
65The sentence of the Court is that on each of Charges 3 and 5 of Common Assault, you will be convicted and sentenced to 9 months imprisonment.
66On Charge 12 of Making a Threat to Inflict Serious Injury, you will be convicted and sentenced to 12 months imprisonment.
67On each Rape Charge being Charges 4,6,7,8,10,11,13,14,15 you are convicted and sentenced to 8 years imprisonment.
68I order that 3 months on each of charge 3 and 5 and 6 months on charge 12 be served cumulatively on Charge 4, the base sentence.
69I order that 9 months on each of Charges 6,7,8,10,11,13,14 and 15 be served cumulative on charge 4, the base sentence, making a total effective sentence of 15 years.
70I order that you serve 10 years and six months before being eligible for Parole.
71I declare that you have served 129 days by way of pre-sentence detention sentence and that number will be noted in the records of the Court.
72The records of the Court will reflect that I have sentenced you as a serious sexual offender for charges 7,8,10,11,13,14 and 15 under the provisions of the Sentencing Act 1991 requiring such notation.
73Pursuant to the provisions of the Sex Offenders Registration Act 2004 I order that you be registered for life.
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