Director of Public Prosecutions v Sepehrnia
[2022] VCC 942
•17 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-02584
CR-19-02325
CR-19-01441
CR-19-01442
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAHA SEPEHRNIA |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March (Plea) and 14 June 2022 (Further Plea) | |
DATE OF SENTENCE: | 17 June 2022 | |
CASE MAY BE CITED AS: | DPP v Sepehrnia | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 942 | |
REASONS FOR SENTENCE
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Catchwords: Threat to kill x3 (rolled up) - Prohibited person possess imitation firearm - Rape x2; Recklessly Causing Injury - Two separate victims of rape in successive relationships with the prisoner - Each threatened - Late plea - Significant criminal history both prior and subsequent - Worboyes v The Queen [2021] VSCA 169 – COVID-19 - Serious violent offender - Lengthy time in custody including for two other sentences - Totality.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. A. J. Gray | Office of Public Prosecutions |
| For the Accused | Mr T.F. Danos | Giorgianni & Liang |
HIS HONOUR:
1 Taha Sepehrnia, you've pleaded guilty to two charges of rape, three charges of threat to kill, one charge of prohibited person possessing an imitation firearm and a single charge of recklessly causing injury. The threats to kill are all rolled‑up charges. You have admitted to a lengthy enough criminal history, with both prior and subsequent offending. You were on a community corrections order at the time of these various offences that I am dealing with.
2 You were born in June of 1992 and are 30 years of age now. The maximum penalties are correctly set out in the agreed opening, or the attachment to that document. I see no need to re-state them. I take into account the maximum penalties.
Facts
3 Mr Gray appeared to prosecute on the plea and he relied upon a written summary of prosecution opening that was dated 15 February 2022.
4 That document was marked as Exhibit A on the plea. Your counsel, Mr Danos, told me that it was an agreed summary. It was a lengthy-enough summary, running for five pages and referencing various materials within the depositions. I see no need to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed summary.
5 That agreed summary refers to some recorded phone calls, which place the conduct in relation to Ms Pena[1] into some context. Those call transcripts are contained within the depositions. The agreed summary has very broad summaries from those transcripts. I have read the actual transcripts themselves. In fact, one of the calls was played as part of the context and was marked as Exhibit B. That related to conduct on 8 February of 2018 so not the subject of a charge, but of course, it is still relevant.
[1] A pseudonym
6 That is the person you were threatening, both before and after that date. That is the person you had raped some days before and that is the person that you assaulted two days later. You have listened to that call yourself in the course of the plea and you said in your evidence given on the plea before me that you were, to quote your words, 'behaving like an animal'. You were.
7 Anyone really wanting to understand the true nature of the relationship best listen to that call. The transcript is bad enough but your tone was quite extraordinary. In fact, it started out as an apology from you, see transcript at pages 207 to 208 of the depositions. But it seamlessly and swiftly moved to pretty incredible utterances, with you requiring her not to talk to guys and to remove her nose ring.
8 At page 210, she repeatedly told you to leave her alone. You repeatedly asked, 'You want me out of your life?' She kept saying she did, and finally said, 'Yes, yes, yes. Please, yes. Yes please.' She was crying. She was begging to be left alone. On it went. It was an amazing example of a woman being completely dominated by you, telling her, as you did, that the only way she will not date you is if she kills herself. You said, 'You're not leaving my life. What, you think I'll let you move on? You're fucken' dreaming.' See transcript at p213.
9 When she told you she was not planning on moving on in the sense of moving on to a different fellow, but wanted to be alone for the rest of her life, you then informed her that wouldn't happen because, as you said, 'I'm in your fucken' life. I'm not leaving you alone. You're my girlfriend, I love you. That's it.' See transcript at p215.
10 You were screaming at her in the course of this call. 'Do you understand?' You kept telling her to get home because she is not allowed to go anywhere. See transcript at pp216 and 221.
11 I have never heard anything like it.
12 I will provide the briefest of summaries of the offending so these reasons may be understood by anyone who happens to access them. You met a young woman named Violet Wallace[2] in July of 2016. She was about 25 years of age. So you were a similar age. It was a very swift relationship that was formed and one that was tumultuous in the extreme.
[2][2] A pseudonym
13 You had threatened that you would kill her within days of meeting her. You had told her that she must not hang around with other guys and that if she did, you would kill her. So began the rolled-up conduct in relation to Charge 1, threat to kill. You were incredibly possessive and domineering.
14 She had moved from Mildura and was living with you at your mother's house. There were regular arguments and on one occasion, you told her that you were going to get your handgun. She ran and hid in the house, and was yelling at you not to shoot her. You entered the bedroom where she was hiding. You then pointed the firearm at her stomach and yelled out that if she did not shut up, you would kill her. That threat is rolled up as part of Charge 1. The possession of that imitation weapon whilst prohibited, founds Charge 2.
15 This relationship was done and dusted within about a month, and on 16 August of 2016, you told her to leave the house. It was late at night. She asked to remain until the morning.
16 That next day, again, the two of you were arguing. She ran from the address, you chased after her and you dragged her out from under a bush where she was hiding. She was distraught. She then followed you back to the house. You continued to argue in your bedroom. You pushed her onto the bed and used a pillow to cover her face. She struggled against your weight and was battling to breathe. You held her down.
17 You removed the pillow and you said, 'Now I'm going to rape you,' and you did just that. She cried out, 'No.' She was crying and screaming at you. You ripped off her tracksuit pants and underwear. She was screaming at you to stop, and instead you grabbed her by the throat and forced your penis into her vagina. That rape lasted for a couple of minutes and was unprotected. Your victim is not sure if you ejaculated. You stood up and walked out of the bedroom and then left in your car.
18 On a later date, you demanded a meeting, failing which, you said her parents would be hurt. You wanted her to walk with you to the Knox Police Station to withdraw her complaint. She said she would do so after work. Once you had parted company, she thought better of withdrawing her complaint. There were then multiple messages left by you on her phone later that day, saying that unless she complied and withdrew her complaint, you would kill her parents. That conduct is the subject of the rolled-up Charge 4.
19 You were interviewed in relation to this matter on 25 October 2017 and released pending summons. That is relevant, of course, for the rape of your next victim occurred after that interview.
20 You had met 52-year-old Dawn Pena[3] in March of 2017. It was also an extremely volatile relationship, with you demonstrating the sort of conduct on display in the relationship with the earlier victim: possessive, controlling, jealous and aggressive behaviours - see paragraph 15 of the opening. I have already referred at length to the 8 February call, which is marked as Exhibit B. She ended the relationship in December of 2017. You simply would not accept it and called her and repeatedly attended uninvited and at all hours.
[3] A pseudonym
21 Prior to that break-up in November of 2017, your possessiveness and jealousy was on display in a pretty extraordinary incident out at Chadstone, where a friend of the victim saw her and just called out her name. That was all. You turned to Ms Pena and said, 'You're dead if you know this guy.' That conduct is rolled up into Charge 5, threat to kill.
22 In fact, you got out of the car and confronted this totally innocent man. He refused to retaliate. That is just to illustrate your sense of ownership. You do not fall to be sentenced for that confrontation with the man. Your threatening conduct occurred again on an occasion described in paragraph 17 of the opening. Banging on her door and threatening to break it down.
23 Ultimately, Ms Pena allowed you in. She was in fear of you and for good reason. By this time, of course, she had told you the relationship was at an end. You just would not leave her alone. You would just not accept her decision. Having obtained entry in this way, you then raped her in her own bedroom. You threw her onto the bed, you lay on top of her and you said, 'If I ever find out you're with another guy, I'll kill you.' You then removed her clothes, ignored her pleas to stop and then forced your penis into her vagina. She continued to beg you to stop but you ignored, stopping only once you had ejaculated. This rape was unprotected.
24 A week or two later, you demanded a meeting and you behaved in a despicable fashion in the car, as described in paragraphs 19 and 20 of the opening. You had said that if anyone called the police, you would kill her. When she got home, again, you threatened to kill her if she went to the police. On a later occasion on 10 February 2018, you then injured her in the way described in paragraph 22 before issuing yet another threat to kill her.
25 You were behaving like an out-of-control, jealous and controlling maniac. As I have said a moment ago, you have listened to one of those calls between you and Ms Pena, and as I say, said in the evidence before me that you were 'behaving like an animal' you were right.
26 The thrust of the plea conducted on your behalf was that you were a drug addled, cocaine and steroid abusing man, monstering or controlling your female partners, but that you had the capacity for reflection and for change. Now upon interview with the police, you either denied any offending or made 'no comment' responses, as was your right. That stance is not a matter in any way in aggravation. It is just that you cannot point to any answers given which indicate any remorse.
27 You have been in custody for a very long period indeed and the totality assumes real importance here. There was a detailed chronology attached to the summary of prosecution opening which spells out that period and a couple of intervening sentences. These were not early guilty pleas, as was readily conceded by your counsel, but they are still of real value and they must be adequately recognised. So much then for what is really only a short summary of the summary, I will sentence pursuant to the more detailed statement, which is marked as Exhibit A on the plea.
28
There is no victim impact statement in this case from Ms Wallace but plainly, this was very serious offending with impacts upon her. You raped her. Her statements speak of that impact. As for Ms Pena, she had prepared a recent victim impact statement that was dated 4 March 2022 and marked as
Exhibit C on the plea. That impact statement contained a large range of matters that were plainly inadmissible. It's true these statements are not expected to be free of emotion but there were many references to you being a monster, and I indicated I would insert into each such reference your name and remove from the statement the description of your being a monster.
29 There are also references to many acts that are not the subject of the charges that I am dealing with, and plainly, I cannot have regard to those matters. So there are references, and I mention just a few, to threats or assaults or physical damage, for instance to the jaw. Nor can I act on the suggested impact upon her children. Nor is it open to me to conclude that an aneurism was the result of any of these crimes.
30 I raised some of these issues prior to the reading of the impact statement, and I raise them with the prosecutor, Mr Gray, who was not particularly responsive to my concerns. I pointed out these issues and in particular, a large segment on the last page dealing with the theft of money. I required that not even to be read, and it was not.
31 At the end of the day, I will act only on the admissible and relevant portions of the victim impact statement. The parties were comfortable with that approach. There really is little need for me to cite passages from that impact statement. It was read aloud by your victim. I have also listened to her voice in the 8 February call. She was a defeated person, just exhausted by your inability to accept her decision, and she was obviously at her wit's end.
32 What is so very clear is that the impact of these crimes upon Ms Pena has been profound. Deep and lasting impact, which frankly made quite strange your counsel's efforts to point to a mug with a photograph of the “happy couple” or a handful of texts post-dating the crimes, suggesting otherwise, or for that matter, a letter written by Ms Wallace many years ago as being in any way significant. I will say a bit more about that approach in a moment.
33 Each are very lucky to be out of the relationship. The speed with which you insinuated yourself into their lives and then dominated and controlled them was pretty startling. Each has obviously been damaged by your crimes and of that, there really can be no doubt at all. I take into account the impact as I am required.
In Mitigation
34 Mr Danos conducted the plea on your behalf and he relied upon a brief written outline that was dated 11 March 2022. That was marked as Exhibit 1. He relied upon a report from a psychologist, Mr Cummins. There was also a recent addendum to that report. There were also some course certificates and a letter from VACRO that was marked as Exhibit 3.
35 There are those strange exhibits I spoke of a moment ago, a photograph of a mug and some screenshots of messages between your mother and Ms Pena (Exhibit 4) and the undated letter written by Ms Wallace (Exhibit 5). Your mother was also asked some questions as to the texts. I tried to understand why those materials were being presented in a case where the summary was an agreed one and that summary itself spoke of the nature of each of these relationships.
36 There are references to this aspect in the written submissions in paragraphs 14 to 18. Paragraph 14 reads, 'Whilst not seeking to derogate from his plea of guilty to the rape charge involving Violet Wallace, the undated letter tendered at the trial, if written on her day of departure, namely 17 August 16, puts the events that occurred in a different light.'
37 Firstly, there is no concession that it was written on that day and no evidence of that fact. I cannot see how the event is put in a different light by that letter. The rape took place in the way described. The rape is not in a different light at all, nor the threats. The written submissions go on to describe, at paragraph 17, again, in relation to Dawn Pena, there was communication from her to others which puts her relationship with Mr Sepehrnia in a very different position, that which is espoused in her victim impact statement.
38 As to those subsequent communications by Ms Pena, they simply do not alter the nature of these crimes that I am dealing with. I repeat, the summary is an agreed summary. I asked what this all meant, what the purpose of all this was, and Mr Danos at one point told me that these women chose to remain with you, that they voluntarily associated with you, that each had, as he put it, ‘some level of acceptance of your conduct.’ See the plea transcript page 92.
39 It struck me as a quite bizarre submission. They did not volunteer to be raped; they did not volunteer to be threatened; they did not volunteer to be treated in the manner in which the summaries describe. Ms Pena did not volunteer to be treated in the manner disclosed in the taped calls that I have referred to or the one that I have listened to. I repeat, it is an agreed summary. They just had the great misfortune to have met you and to have been in a relationship with you.
40 How that was in any way mitigatory or touching upon the level of impact was then and remains now a complete mystery to me. This approach betrays, really, an ongoing inability to understand and appreciate the seriousness of your conduct and your crimes
41 There was also on the plea a bundle of materials dealing with the manner in which you have been held in custody. This was Exhibit 6. Mr Danos placed before me some details of your personal and family background, including your education and employment history. He made some submissions as to the relative gravity of the offending and reasons for offending, your prospects of rehabilitation as well as the relevant sentencing principles that came into play.
42 He spoke of the sizeable period that you had served already. He called a pastor from a Baptist church as well as your mother. You were also called briefly on the plea and provided an apology to each of the victims.
In Mitigation
43 Mr Danos raised the following matters in mitigation:
· Your guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· The aspect of totality and delay; and
· The impacts of COVID-19 upon your custodial experience.
44 He placed before me some other examples of sentences imposed by other judges and he conceded the inevitability of a sizeable prison sentence with a non‑parole period.
Prosecution
45 Mr Gray made submissions as to matters in aggravation and mitigation here. He dealt with the seriousness of this offending and the need to deter you and the fact that drug use was not a matter in mitigation in this case. He argued that one really could only be quite guarded as to your future prospects, given your long history before the courts and your long-term issues with drugs.
46 He placed before the court three cases said to have some similarities. The Director was calling for a prison term with a non-parole period but so much had been readily conceded by your own counsel.
Background
47 I turn to your personal background and I will do that very briefly, as I have no particular reason to doubt the detail of your personal and family background that has been placed before me. There is no point in my setting it all out in these reasons. Much of it was in Mr Cummins' first report and some of the detail was also from your mother when she gave evidence before me.
48 You are now 30 years of age, as I have said before, born on 2 June of 1992. You have a younger sister. The family history is a bit confused, at least in the report of Mr Cummins, who reports you as saying that you had never met your father. Later paragraphs in his report suggested otherwise. Your mother confirmed that you had met your father when you were very young and before coming to this country.
49 She said it was an abusive relationship and that she came to Australia when you were about 6 or so. Your mother, as I understand it, is a kindergarten teacher. She confirmed that you are an Australian citizen. I asked specifically about that as it was not clear from the materials, and of course, I saw reference to the fact of your being born overseas. I wanted to know for sure that you were not facing any risk of deportation, and you are not.
50 You attended a large number of schools and you were expelled from a number of secondary schools for disruption in class and for fighting. You left school in Year 9 as a 15-year-old. There is reference to your establishing a lawn-mowing business and working as a painter but it is many years since you have worked legitimately.
51
You turned to crime and you speak of it pretty candidly in the report with
Mr Cummins. See paragraphs 18 and 19. You got involved in taking and selling drugs and collecting drug debts. You lived a life of great excess and were heavily involved in gambling. You had serious issues with drug use from your mid-teens, predominantly steroids and cocaine, and cocaine use escalated when you were around 20. You thought you were invincible. Mr Cummins speaks of the relationship between the various drugs and the impacts of drugs upon your abilities.
52 You have been held in custody since March of 2018, so for well over four years, but not all of that time is strict pre-sentence detention, owing to a couple of sentences you have served in that period, including one imposed for being involved in the prison riots. You have had a difficult time in custody. In March of this year, I was told that there had been some physical health issues. It was those issues which caused your counsel to apply to adjourn the plea part‑heard from 15 March to await the outcome of a blood test, ultrasound and biopsy.
53 The plea was adjourned to 23 May but then that date was vacated as an addendum was being written by Mr Cummins and he was not well. That May plea date was vacated and the plea was adjourned to earlier this week, so Tuesday 14 June. That is why I am dealing with you now in June. Those medical issues that provoked the adjournment application have come to nought. No material has been placed before me at all.
54 You have an extensive enough criminal history, both prior and subsequent. In fact, some of the appearances in the subsequent history that has been marked as Exhibit D, would in fact be prior convictions for the purposes of Charges 5 to 7 on the indictment. You have been sent to prison frequently enough. You have breached very many court orders. You were on a community corrections order at the time of the offending the subject of Charges 1 to 4, and it would seem, two community corrections orders by the time of the offences the subject of Charges 5 to 7. There was also a judicial monitoring condition.
55 There really is no point in my conducting a detailed audit of your lengthy enough criminal history. There are many matters of relevance there though no sexual offences. You have breached many court orders and you have committed a number of crimes of violence in the past. You do not fall to be sentenced a second time for any of those past matters. I want to make that very clear. You have received and served those sentences.
56 But the criminal history obviously assumes some importance, when I consider the need to deter you and to protect the community from you. It is obviously relevant when I come to consider your risk of re-offence and your prospects of rehabilitation. You have not taken many, if any, of the chances offered to you by the courts. The need for specific deterrence is very plain here indeed.
Guilty Plea
57 I turn then to consider the matters raised by your counsel. The first of those matters is your guilty plea. Your plea was not entered at an early stage, nor does your counsel suggest it was an early plea. Of course it was not. I will not set out the chronology in full. There were contested committals for each victim and then a trial in front of another judge involving the allegations levelled by Ms Wallace, where she was called as a witness. She was fully cross-examined. That trial did not reach a verdict. The jury in fact was discharged without verdict in November 2019 after some inadmissible evidence crept in, and then of course COVID-19 struck not too long after. There was then a lengthy hiatus.
58 I was engaged by Listings to conduct the re-trial and other trials in late 2021. At that stage, you were pleading not guilty to all offences, in what appeared to be three separate trial proceedings. One trial was the re-trial relating to Ms Wallace; one trial relating to Ms Pena and her allegations and one trial relating to the imitation firearm. You had filed a defence response and denied any offending, sexual or otherwise, against Ms Wallace and Ms Pena, and you had denied any possession of any imitation weapon.
59 Some evidence was pre-recorded before me on 25 November 2021 for the upcoming Ms Wallace allegation trial. I empanelled a jury on 26 November in relation to the re-trial matter and the matter settled on the basis of this plea indictment prior to opening addresses being delivered.
60 So it is hardly an early plea, and again, nor does your counsel suggest it is. To complete the chronology, your counsel then applied on 30 November to adjourn the plea to 15 March and then to 23 May, and as I have said, that adjournment was to obtain medical materials, none of which have been filed on the plea, and that May date was vacated owing to difficulties obtaining the addendum from Mr Cummins. The plea resumed earlier this week. That is why I am dealing with you so long after the arraignment. It is not my normal practice to do that.
61 Though not an early plea, by pleading guilty, you have ultimately taken responsibility for your offending. As a result of your plea, there has been no need for a re‑trial in the case of Ms Wallace and no need for a trial in the case of Ms Pena. Ms Pena has been altogether spared that experience of giving evidence before a jury. Not so Ms Wallace, who gave evidence at the earlier trial. She would not have been called again; there would have been reliance on the taped evidence from the previous trial.
62 Your guilty plea is still of real importance. You have in these ways facilitated the course of justice. Your guilty plea is also worthy of extra weight for the many reasons set out in the decision of Worboyes[4]. There is a large backlog of cases waiting for hearing in this court as a result of the global pandemic and the difficulties of running trials. Your case is now not one of them. Of course, if it was part of that backlog and was ready to run before me in November of last year. Plainly, the savings are nowhere near as large as they would be in the setting of a very early guilty plea, but I take these various matters into account in mitigation in your favour.
[4]Worboyes v The Queen [2021] VSCA 169
Remorse
63 Your counsel submitted there was some remorse. I have your guilty pleas, it is true. A guilty plea is often but not always indicative of at least some remorse. I have also, though, in your case, your denial of the offending in the interview and also in the defence response, which had been filed. The reality is that this matter settled at the door of the court.
64 I have your evidence given on the plea, the evidence from the pastor and also from your mother, as well as reference to some remorse in the report of Mr Cummins. None of that alters the chronology of the listings of this matter or the denials. Mr Cummins saw you in January this year, after it had been settled.
65 Your evidence contained an apology to each of your victims, and it really is a bit hard to know what to make of that. At one point, you said, 'I understand my behaviour was wrong once it got explained to me properly what's going on and how times have changed. I completely understand.' See transcript 74, line 19. I am not quite sure what had to be explained to you.
66 I am not satisfied that there is much remorse in play in this case. There is a fair dose of self-pity, that is for sure. It is plain to me that you have harboured terrible attitudes towards women. I have the taped call and the agreed summary that spelt that out very clearly.
67 I am prepared to infer some very limited remorse from your guilty plea and the other materials before me, including your evidence, and I am prepared to take that into account in your favour.
Rehabilitation
68 I turn then to your prospects of rehabilitation. You have pleaded guilty and you have, as I have said, some limited remorse. You have been in custody already for a very sizeable period and it has not been easy. I have paid regard to Exhibit 6. Your criminal history is, of course, problematic. You either cannot or you will not learn. You keep offending despite every effort being taken to avoid sending you to prison.
69 You were on a community corrections order at the time. That did not impede your serious offending. You had been interviewed in relation to one rape and yet you committed another. You have not taken many of the chances offered to you by the courts over the years and of course, you are no longer some foolish teenager. You have breached multiple community corrections orders, all of which had conditions designed to foster your rehabilitation and lead you away from crime.
70 You were a mature enough adult who, for whatever reason, chose to offend. Courts have not succeeded in deterring you. You even offended whilst you were in custody and were dealt with for involvement in the prison riot. You had long-term and significant issues with illegal drugs of dependence. That casts a significant shadow over your future prospects. So do your past failures to abide by many court orders, and to be meaningfully deterred by your dealings in the criminal justice system.
71 There are some risk assessments in the report of Mr Cummins. He believes you are a low to moderate risk of sexual re-offending, however your risk of offending generally is clearly much higher, if you are using drugs of dependence. He recognises the sizeable risk at paragraph 38 of his report. The fact is, you have lived a deeply antisocial existence for close to half of your life. No doubt, the fact of apprehension, of being charged, of being brought before the court and being on remand at this point will serve to deter you to a degree. So to of course the sentence which I will soon impose.
72 You still have some family support from your mother and from Pastor Steer and that is an obvious plus. I have the evidence of those two. I note of course that your mother has been supportive of you in the past and Pastor Steer has given evidence for you in the past. Their support has not impeded your offending.
73 You have done some courses in custody. That much is made clear by Exhibit 3. I am told by your counsel that you are coming to a point of realising that you must change. They are really just words, and words which I suppose, are easy enough to utter. There is hardly a flood of accused men who, when called on a plea or when conferring with their counsel, speak of their desire to re-offend in the future. The written submissions say that you have reached a point wherein you assert it is time to put your past behind you and move forward and not commit any transgressions (see paragraph 19). It is all a bit meaningless, really.
74 Your counsel was arguing that you have some prospects of rehabilitation, that change is possible in your case, and that your conduct was tied in with your drug use. He is referring to the addendum report of Mr Cummins. One must wonder about that, really. It surely has a fair bit to do with your attitude to women, given that I have a clear window into two relationships that you had with women, and your attitude was simply dreadful. Exhibit B, as I say, that taped call in February of 2018, is really quite startling, as to your sense of entitlement and desire to possess another human.
75 However, when I reflect on all the materials, including your evidence, I do not doubt that you would want to change. I mean, why would you want to keep living the sort of life you have been living over the last decade? I do hope that you can make meaningful change for your sake, and also for your mother's sake and for the sake of any future intimate partner.
76 But I have to be realistic in my assessment. I can really only be very guarded here. Your prospects of rehabilitation will be conditional on your obtaining employment and remaining drug‑free and getting treatment and counselling, and totally changing your possessive and violent attitude towards women. But all of these things have been possible for many years and yet you have done none of these things.
77 If you continue to use illegal drugs, you will have almost no prospects at all of rehabilitation. None. But we have not reached that point yet. I accept that you do have some prospects of rehabilitation but I cannot put it any higher than that. Mr Cummins recognises the significant risk of your drifting back to the ‘only life you have known’ for many years, that of illegal drug use and associated criminal behaviour. See paragraph 51 of the major report.
78 You will need a power of work and intervention and counselling and abstinence to make a go of it. I hope that you can but I have no reason to be particularly optimistic. Though I find that you have some prospects of rehabilitation, those prospects are, in my view, relatively poor.
Mr Cummins
79 I mentioned a moment ago the reports from Mr Cummins. Your very experienced counsel was explicit in submitting he was not relying upon any of the principles from the well‑known case of Verdins v R[5]. I am prepared to accept that concession, having read the reports and the materials again thoroughly. There is no reduction in culpability and any increased burdens spoken of related to a reactive condition.
[5]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
80 That is not to say that I ignore the reports or the conditions spoken of within them. I take them into account in a general way. The major report is in fact a useful repository of background information and each of them give me a sense of what makes you tick. It gives some sense that you might - I say might - be ripe for change. There are those risk assessments that I have spoken of and the references to the presence of some remorse.
81 Insofar as Mr Cummins speaks of the role that drugs may have played, it is not mitigatory, that you were under the influence of drugs at the time of any of this offending. Nor is it mitigatory that drugs and use of drugs impacted upon your ability to make rational choices and judgments. Nor can your conduct all be put down to drug use. Not at all.
82 As I said a moment ago, your attitude towards women was quite extraordinary. You had a sense of entitlement and a right to possession of them, and I am not satisfied to the required degree that this can be put down to drug use at all. You knew what you were doing, and I rejected the suggestion raised by Mr Danos on your plea that you were somehow delusional. You were not. You knew what you were doing. Of that I have no doubt at all.
83 I am confident that drugs would have had a role in disinhibiting you. They always do. But that's not mitigatory. Nor, though, is it an aggravating feature. I do, though, accept that abstinence from drugs may be the key or at least one of the keys to your future rehabilitation. It is critical. I take into account then these reports in the manner submitted by your counsel.
COVID-19
84 I turn to the issue of COVID-19 and its impact upon you. I accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there. No doubt there has been worry about catching the virus in such a setting, where, unlike someone in the community, there is really no level of autonomy. You have experienced lockdowns and the increased burden of quarantine on occasions.
85 There undoubtedly would have been limitations to visiting and courses in much of the period in which you have been held, as you have been there in custody throughout the global pandemic. It has certainly not been a good time to be locked up. Things have looked up in recent times in the community and in a prison setting; personal visits resumed from around March of this year, though it would seem, not for you. I do not know why that is.
86 What lies ahead in the future, though, is impossible for me to determine. I cannot speculate about that sort of thing. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case‑by‑case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence which I will soon impose. I cannot know if that will take place or not, and I must not proceed on the assumption that it will. To take into account in that way would be for me to contemplate a future executive action, which is prohibited.
87 Case numbers are still pretty high in the community and it is not unreasonable for me to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. I take that into account as well. I note for instance that I still could not bring you out to court in person, as to do so would have exposed you to a seven‑day quarantine on the way back. The prisons have tended to lag a bit behind the community in terms of restrictions being lifted and they also tend to bring them back in more rapidly.
88 It is plain that we are not ‘out of the woods’ in terms of COVID-19. In fact, there have been some recent lockdowns in prisons owing to infections in a prison setting, a recent one up in Marngoneet with 60 prisoners with positive cases and as many quarantined as close contacts. So there is still a lot of uncertainty and I take that into account. None of this is easy. I take into account then the increased burden posed by the response to COVID-19 in the manner that I have described.
89 I have mentioned Exhibit 6. It sets out a summary of your movements within the prison system. There is a letter that speaks of some of the units that you have been in. You have been held in management units and also in protective custody. There really is no great profit, in my enquiring as to the extent to which your own behaviour in prison has led to such an outcome. In your own evidence, you spoke of an altercation. See transcript page 75.
90 Whether arising from COVID-19 or otherwise, and whether a response to your own conduct or status or not, it is clear that your time in custody has been especially onerous. I take that into account in mitigation. I also take into account the delay. It was not your fault that the first jury was discharged in late 2019. Not your fault that COVID-19 then intervened and made the retrial impossible until quite some time down the track. If I may say so, it is something of a shame that greater efforts were not taken to settle the matter some years ago, but seemingly there were not, I have not been told about any efforts to settle it.
91 You have, however, been in custody for this extended period. That is what is important and I am required to take that into account by way of totality. You have had these cases suspended over your head for a sizeable period with much uncertainty as to your own position, and that cannot have been easy. You are only learning your fate today. It is a penalty in itself to have a matter outstanding in that way. I take the delay into account.
The Offences
92 I must pay regard to the nature and the gravity of the offences before the court. This was undoubtedly serious offending, all of it, in the midst of an intimate partner relationship. Charge 1 relating to threats to Ms Wallace. That charge rolls up two nasty threats. You ought to be sentenced for them both. Jealous, controlling threats to kill issued from early on in what was a short relationship, and the second of those threats was enforced by the production of an imitation firearm pointed at her. That weapon plainly aggravated the threat uttered, and so I am astute not to doubly punish you when dealing with the prohibited possession charge. The threats extended to killing her parents. That is Charge 4.
93 The rape was of a distraught victim who had been hiding from you under some bushes. You dragged her out from under some bushes, she returned home in that state and the argument continued. You then raped her. You told her in advance that you would rape her. It involved physical force, a pillow over her head, her struggling against you and you holding her down.
94 She was crying and screaming and resisting. She was telling you to stop as you ripped off her clothes. You grabbed her around the throat and she continued to struggle, to no avail. You were too strong and penetrated her vagina with your penis. She was powerless to stop you. You are a very large man. I note the reference to your being some 155 kilograms in Mr Cummins' report at paragraph 23.
95 She was powerless to stop you. There was no semblance of consent. It was an unprotected activity but it is not clear as to whether you ejaculated or not. This was very serious criminal conduct. You treated her as an object and you persisted in your conduct notwithstanding her protests.
96 Ms Pena was also subjected to serious threats to kill. Again, complete possession, domination and control were in your mind. These threats included threats to kill if she reported your conduct or if her daughter reported the assault. As I have mentioned earlier, I have heard your tone on the tape. So have you, in listening to Exhibit B. You were just relentless and unstoppable, and she was broken. The rape itself was extremely serious.
97 She had ended the relationship or tried her best to. You just would not accept her decision and you were totally out of control, behaving like a gangster. You were on this occasion banging on the door, demanding to be admitted at a place where you were not welcome. This was her house, and you had no business being there at all. Your victim let you in out of fear and you then raped her in her own bedroom, in her own home, asserting your ownership of her by way of the threat issued just before the rape, 'If I ever find out you're with another guy, I will kill you.' See paragraph 17.
98 She begged you to stop. You manhandled her and despite her pleas to stop and despite her continued struggling, you then raped her vaginally. This was an unprotected act and you ejaculated inside her. You come back to that house again, again unwelcome and uninvited on 10 February, and again, nasty conduct ensued, which included the recklessly causing injury and the final aspect of the rolled-up threat with you witnessing her teenage daughter on the phone, you believed, speaking to the police, and you saying then to Ms Pena that if her daughter called the police, you would kill Ms Pena.
99 This was a catalogue of controlling, violent and shocking behaviour against two successive intimate partners. The rapes had a number of the aggravating features listed in the case of Jurj[6]. See also the Judicial College of Victoria Sentencing Manual at 24.2.2.1.
[6]Jurj v The Queen [2016] VSCA 57
100 I mentioned the need not to doubly punish you as to the prohibited person possessing an imitation firearm charge. Though dealing with a slightly different provision, the cases of Best[7], Powell[8], Simpson[9] and Berichon[10] describe the two broad categories of offending as well as sentencing practices and range for each band, the first being the least serious band, where it is not open to conclude that the possession of the imitation firearm was associated with some ongoing criminal purpose, and the more serious category, where the evidence enables that conclusion of possession for a criminal activity or specific criminal purpose, for example in the context of criminal activity to provide security or some means of enforcement.
[7]Best v The Queen [2015] VSCA 151
[8]Powell v The Queen [2015] VSCA 93
[9]Simpson v The Queen [2015] VSCA 210
[10]Berichon v The Queen [2013] VSCA 319
101 What is very clear from the cases is that sizeable‑enough sentences are imposed for that lower band of offending. The fact is, though, that Berichon has not established some fixed category of offending which constrains the court's approach to the individual circumstances of the individual case. Sentencing does not involve that sort of mechanistic or automatic exercise. Nor do I lose sight of the fact that Berichon related to a slightly different provision, and one with a higher maximum penalty.
102 In your case, your possession of the imitation firearm was tied into your use of it to reinforce the threat that is rolled up as part of Charge 1. I have treated the possession of the firearm and its use in that way as a feature of aggravation in relation to the threat to kill. To then aggravate the prohibited person charge for itself having a connection to a criminal act would be to use an aggravating feature against you twice. That, in my view, would involve an aspect of double punishment.
103 There is clearly an overlap here but it is not a case where there is a complete overlap. The prohibited person charge relates to having in your possession when prohibited, an imitation firearm. That offence does not contemplate your state of mind or the issuing of a threat or anything beyond the fact of possession. It is no minor example of that crime but again, it seems to me that I must not treat the possession and use of that imitation weapon in committing the crime of threat to kill as then elevating the possession of the imitation offence itself into the more serious Berichon class. I approach my task in this way to avoid doubly punishing you. That overlap is also relevant to totality as well as the extent of cumulation.
104 The recklessly causing injury to Ms Pena did not seemingly involve a physical injury of any great significance but of course it occurred in the setting of that unwelcome attendance at the victim's house and the disagreement about the dog. It occurred in the context of your refusing to accept Ms Pena' answer as to the end of the relationship, and the context itself is a matter of some aggravation.
Purposes
105 I have to consider a number of purposes of sentencing. I do pay regard to your prospects of rehabilitation as they are one of the purposes of sentencing. As I have announced, I can only be quite guarded here. There are some prospects but I do not assess those prospects at all favourably. They are, in my view, quite poor and I must pay adequate weight to other purposes of sentencing which assume significant importance in this case.
106 Courts have tried to foster your rehabilitation to no avail. Though rehabilitation is not unimportant, the weight given to rehabilitation must drop away here, given your age, your lack of response to past court orders and the very serious escalation represented by this offending.
107 I must punish you justly and proportionately. Punishment is an important consideration here.
108 I must also denounce your conduct. That also is important. This sort of violent abusive conduct, including sexual offending targeting an intimate partner or former intimate partner must be strongly denounced. I do denounce it. Community protection is also of real importance, given the nature of this conduct and your lack of response to many past orders. You present a sizeable-enough risk of re-offending. You present a real risk, in my judgment, to any future intimate partner. That much is very clear to me.
109 That is, unless you totally change your attitude and your mindset. I hope that you can, but I am not overly optimistic. In fact, community protection is the principal purpose of sentencing in relation to Charges 4 and 5, within the application of the Serious Offender provisions.
110 I must pay appropriate weight to deterrence, both general and specific. There is the need for this court to deter you and others from this style of offending in the future.
111 Specific deterrence, which is the need to deter you, is of real importance in this case. That is obvious. You need to get it into your head that you have no right to treat an intimate partner in this fashion, none. You need to get it into your head that if someone wants to end a relationship with you, well, they can. That is their choice; that is their right.
112 You need to get it into your head that to threaten to kill and then to rape an intimate partner as you have done in these two series of offences can only be met with stern punishment when brought before the court. There is just no other possible outcome. I must try again to deter you from offending.
113 General deterrence is also a significant sentencing purpose in this sort of case. That is, the need to deter other offenders. We are sick of men who think it is somehow their right to assault or threaten or monster a female intimate partner or ex-partner, as you did. The message must be conveyed that the courts will take very seriously those who choose to commit serious crimes such as these.
114 We as judges must seek to deter others from committing this style of offence. I must have regard to the maximum penalties in play. The rapes carry a 25-year maximum term of imprisonment. The standard sentencing scheme does not apply, given the offence dates.
115 The threats to kill carry a 10-year maximum term but of course, they are rolled-up charges to embrace a variety of threats issued at different times.
116 Though the maximum penalty of course remains the same, it is not a single threat. I am dealing with the totality of the identified rolled‑up conduct. I do pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the relevant portions of the Sentencing Advisory Council online data for the statistics held in relation to each of these crimes. Also, the Sentencing Advisory Council Snapshot No. 255 of 2021 for the crime of rape.
117 I have looked at the Judicial College of Victoria online sentencing manual for cases dealing with recklessly causing injury, threat to kill and also the crime of rape. I have read the various cases submitted by the prosecution and by the defence. Having done so, I note that none of these cases is on all fours. There are many differences; in conduct, in age, in background. Many different matters in mitigation and aggravation and even differences in plea. They were simply not comparable.
118 I note also none involved a second victim. The fact is, other cases are not precedents. There is no such thing as one correct sentence. As is often enough the case, I really was not assisted by being taken to these other examples of other sentences imposed on other offenders for other crimes. As to the statistics that I have mentioned, well, they have inherent limitations. I have to pass an appropriate sentence in your case, and that is not driven by what the statistics disclose. Statistics omit all the factors in mitigation and aggravation. All the things which go to explain a particular sentencing outcome.
119 I have taken into account all of the submissions made by your counsel and by prosecution counsel. I have had regard to all of the material relied upon on your behalf, including the various exhibits and the evidence placed before me from your mother and Mr Steer, and your own evidence.
120 Prison is a disposition of last resort. It is plainly warranted here. That is accepted. There is no debate about that. It is plain that your conduct is deserving of a substantial term of imprisonment, and one where I will be required to fix a non-parole period. There is simply no debate upon that topic. Each party has made some submission as to totality of the sentence.
Totality
121 I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your criminality was high. Totality of sentence is an important consideration here, and I have taken a last look at the overall effect of my sentence. I am not dealing with a single episode. Nor a single victim for that matter. What I am dealing with is a phase in your life where you behaved violently and threateningly towards these two intimate partners.
122 There is the rolled‑up nature of the threat charges. I must recognise the serious threats issued. Plainly the rapes are the most serious offences before me. The threats though fall at the next level. They are themselves serious offences. Charge 5 rolls up threats issued at four different occasions.
123 Charge 4 deals with two threats, the second involving the presentation of the imitation firearm. They are themselves serious offences. As I have said, the prohibited person charge, though serious enough, cannot be aggravated by the use of the imitation in re-enforcing the threat. To do that would lead to double punishment.
124 I must adequately recognise each separate victim and each serious crime you have committed. There must be a significant level of cumulation here to recognise the quite separate, serious crimes committed upon two separate victims.
125 One of the cases referred to me with approval by Mr Danos was a leave application decision of Stamper[11]. I am really not sure that there is much utility in citing a leave application but I have read it, and having read it for what it was worth in that case, two years, three months' cumulation was described by the judge in that case as moderate in relation to a single victim where one rape was one day after another.
[11]Stamper v The Queen [2021] VSCA 323
126 Well, that level of cumulation would be entirely inappropriate and entirely inadequate when dealing with a quite separate rape and a serious one at that, upon a separate victim on a separate occasion. The base sentence in this case will be the rape committed upon Ms Pena.
127 The rape committed upon Ms Wallace was a serious, separate crime, committed by you upon a separate victim at a separate time, an earlier time, and it must be the subject of sizeable cumulation. There must also be some cumulation between the sentences for the various crimes against each separate victim, again, to recognise the serious individual offending against that particular victim. Each crime would no doubt have had some role to play in the overall impact.
128 Totality is modified in relation to the sentences imposed on Charges 4 and 5. By then, it is agreed that you will fall to be sentenced as a serious violent offender. I must regard the protection of the community as the principal purpose of sentences for those crimes.
129 The presumption of concurrency is removed and the court has the power to pass a disproportionate sentence to achieve that purpose. See s6D(b) of the Sentencing Act. I shall not be imposing a disproportionate sentence.
130 I am, though, not free to ignore the serious offender provisions, and they do modify totality considerations for those two matters. Totality is still important here and I do pay regard to the entire period that you have been in custody, not just the strict pre-sentence detention in relation to matters that I am dealing with.
131 Well, I am sorry to have taken so long to get to this point. I will now pass sentence. I will have you remain seated for that exercise, given that we are doing this over the internet.
Sentence
132 Charge 1 is the rolled-up threat to kill Ms Wallace relating to the two threats issued on different dates, the second with the gun employed to reenforce the threat. On that charge, I convict and sentence you to two years imprisonment.
133 On the second charge, that is the prohibited person possessing an imitation firearm, I convict and sentence you to 15 months' imprisonment.
134 On Charge 3, the rape of Ms Wallace, you are convicted and sentenced to seven years' imprisonment.
135 On Charge 4, this is the rolled-up threats issued to Ms Wallace to kill her parents, you are convicted and sentenced to 18 months' imprisonment.
136 On Charge 5, the rolled-up threats to kill Ms Pena relating to five threats on four different dates, you are convicted and sentenced to three years' imprisonment.
137 On Charge 6, the rape of Ms Pena, I convict and sentence you to seven and a half years' imprisonment. That will be the base sentence.
138 Finally, on Charge 7, recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment.
139 The base sentence is the seven and a half years imposed on Charge 6.
Cumulation
140 I make the following orders for cumulation. Four months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, four years of the sentence imposed on Charge 3, four months of the sentence imposed on Charge 4, 9 months of the sentence imposed on Charge 5 and three months of the sentence imposed on Charge 7 is to be served cumulatively upon the base sentence and upon each other.
Extent of Concurrency
141 I have in this way spelt out the extent to which I otherwise order concurrency on those two matters covered by s6E of the Sentencing Act, where you are sentenced as a serious violent offender, so Charge 4 and Charge 5.
142 I am ordering 14 months of the sentence imposed in Charge 4 and two years, three months of the sentence imposed in Charge 5 to be served concurrently. So there is cumulation of 70 months upon the base sentence.
Total Effective Sentence
143 It follows that these orders for cumulation and the extent of concurrency produce a total effective sentence of 13 years and four months' imprisonment. I am required by law to fix a non‑parole period. I am not allowed to speculate as to whether you will be released on the parole. That matter will rest entirely in the hands of the Adult Parole Board.
Non-Parole Period
144 I direct that you serve a period of nine years and four months before becoming eligible for release on parole.
Pre-Sentence Detention
145 You have spent already a period of 1,068 days in custody by way of pre‑sentence detention, and that period is declared as having already been served under this sentence.
Serious Offender Status
146 You have been sentenced as a serious violent offender on Charges 4 and 5 and that is to be noted in the records of the court. I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for 17 years, I would have fixed a non‑parole period of 13 years in that setting, and that statement is to be entered in the records of the court.
147 Let me see if there is anything else. Mr Gray, is there anything else from your perspective at all?
148 MR GRAY: No, Your Honour.
149 HIS HONOUR: Mr Danos, anything else from your perspective?
150 MR DANOS: No, Your Honour.
151 HIS HONOUR: All right, thanks so much, each of you, for your assistance. All right. Mr Danos, you will obviously need to have a conference, and a more detailed one than you can have at the moment, but do you want to utilise the link presently? We've got up till 4 o'clock and you can be put off in a room and host it yourself, to speak to your client if you want to, or would you rather just have your own conference in due course?
152 MR DANOS: I spoke to Mr Sepehrnia earlier in the day. We'll organise a conference early next week.
153 HIS HONOUR: Fine. He has heard that then. That completes the matter then. So Mr Sepehrnia, Mr Danos will be in touch with you in terms of a conference to discuss what has happened here today, and your rights in relation to it. You understand?
154 OFFENDER: Yes.
155 HIS HONOUR: All right. That completes the matter then.
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