Director of Public Prosecutions v Serin

[2020] VCC 1190

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00199

DIRECTOR OF PUBLIC PROSECUTIONS

v

RASIT SERIN

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2020
DATE OF SENTENCE:	5 August 2020
CASE MAY BE CITED AS:	DPP v Serin
MEDIUM NEUTRAL CITATION:	[2020] VCC 1190

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Solicitor for the Office of Public Prosecutions
For the Accused	Mr A. Halphen	Stary Norton Halphen

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.

HER HONOUR: 

1Rasit Serin, you have pleaded guilty to one charge of rape, a ‘rolled-up’ charge relating to two occasions, same incident, on 14 September 2019 involving oral penetration.  The maximum penalty is 25 years' imprisonment.

2The offence of rape is a Category 1 offence and, pursuant to s.5(2G) of the Sentencing Act 1991, a custodial sentence is mandatory. The standard sentence for rape is 10 years' imprisonment pursuant to s.38(3) Crimes Act 1958. Sections 5A and 5B of the Sentencing Act 1991 apply and I shall refer to this later in these sentencing remarks.

3It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A.  I proceed to sentence you on the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and your behaviour obviously unacceptable.

4At the time of this offending you were 39 years of age, and at sentence 40.  The complainant, Suzanna Baxter,[1] 51 years of age at the time of your offending.

[1]A pseudonym.

5You were remanded for this offending on 19 September 2019 and up to and including 22 July 2020 had spent 308 days by way of pre-sentence detention.

6I turn to a summary of your offending.

7On Saturday 27 July 2019, at approximately 10.30 pm, Ms Baxter and her friend Rosa Fuentes[2] went to ‘The Social’, a bar in Chapel Street, Prahran.  In the early hours of the morning, a woman approached them and started talking.  She had been sitting with you.  At approximately 3:00 am, Ms Baxter went outside with you and smoked some methamphetamine in your car.  You asked her back to your place.  Ms Baxter thought you were 'really nice' but did not really want to go home with you at that point.

[2]A pseudonym.

8At approximately 4:00 am, Ms Baxter dropped Ms Fuentes home.  You texted Ms Baxter your address in Dallas and told her your cousin (the woman you had met at the bar) would be there.  Ms Baxter decided to drive to your home.  You talked and smoked ice together at your home.  Your cousin left your home at about 5:00 am and Ms Baxter and you later had consensual penile-vaginal sex at your home.

9On 29 July 2019, Ms Baxter invited you to her home.  You spoke about your problems and you 'started losing it', pacing and rubbing and holding your head with your hands.  Ms Baxter was shocked by your behaviour.  You had brought ice with you to Ms Baxter's home, which you and Ms Baxter smoked.  Both of you then went out and Ms Baxter bought some more ice.  You left Ms Baxter's home in the early hours of the morning.

10At approximately 6:00 am Ms Baxter tried to phone you.  Ms Baxter thought you had seemed anxious and unsettled and was concerned about you.  Ms Baxter later attended your house.  Your cousin was there.  Whilst Ms Baxter was at your home you shut yourself in the bedroom and did not come out.  Ms Baxter did not actually see you on that occasion.

11From that point, Ms Baxter told you that she just wanted to be friends with you.  Ms Baxter became disturbed by the increasing controlling and threatening tone in your texts.

12On Thursday, 12 September 2019, you contacted Ms Baxter by phone and told her what a positive influence she had been on you, that you were going to the gym and not taking drugs.  You told Ms Baxter she was more than family and had done more for you than your own family.  You said you wanted to see her.

13As you 'sounded good', Ms Baxter agreed to meet you on Friday, 13 September.  On that morning, you said you could not attend as your cousin was being rushed to hospital, so you agreed to meet the following day.  It was discussed that you would need to leave by 12 pm as Ms Baxter had to go out.  Ms Baxter asked you whether you could help her dismantle and move some furniture in her home.  You agreed.

14On Saturday, 14 September, at approximately 10 am, you arrived at Ms Baxter's home.  You both had a coffee and cigarette and chatted.

15You helped Ms Baxter dismantle and move two beds.  You were sweating a lot and frothing at the mouth.  Ms Baxter suspected you had been using drugs before you had arrived at her home.

16On one occasion, you approached her from behind and tried to hug her.  That made Ms Baxter feel uncomfortable.  She pushed you away and said, 'I'm family, remember', and 'we're supposed to be friends'.  You told her she was more than family and had done more for you than your own family.

17After moving the furniture, you asked if you could have a bath as you had become sweaty and had not had a bath in a long time as your parents did not have one.  Ms Baxter agreed and started to get organised to leave as planned.

18You called Ms Baxter to the bathroom on three occasions.  On the first two occasions Ms Baxter went to the bathroom and told you she was busy getting ready.  On the third occasion when Ms Baxter approached the bathroom door, you were no longer in the bathroom.  Suddenly, you were behind her, naked.

19You grabbed Ms Baxter from behind with your arm around her neck.  You had a knife in your hand and held the knife to her throat.  Ms Baxter could feel it pressing against her skin.  The knife was about 32 centimetres long when open.  You held the knife in front of Ms Baxter and were 'incredibly aggressive', waving the knife around, pointing it towards the bathroom floor.

20Ms Baxter described you as saying 'dreadful vile things'.  You told her to get down and take off her clothes, saying, 'Get down, fucking get down there.  Fucking do as you're told'.  Ms Baxter did not want to do this and tried to buy time by saying she thought you were just friends.  You, however, were 'so angry and aggressive'.  You continually told her that she had rejected you.

21Ms Baxter was terrified you were going to kill her and that you might drown her in the bath, which was still full of water.  As a result, she did what you asked and took off her clothes.  You still had the knife in your hand.

22You made her kneel down, grabbed her hair and forced her down, forcing her to give you oral sex, and every time she tried to get up you grabbed her hair and pushed her down again.  Forcing oral sex went for about 30 minutes.

23After this, Ms Baxter begged you to let her have a shower to buy some time to get away from you.  You allowed her to do that, but remained in the bathroom watching Ms Baxter, with the knife still in your hand.  You did not put the knife down while you were in the bathroom.

24After showering for five minutes, Ms Baxter went to the spare bedroom.  You got onto the bed and again forced her to perform oral sex on you, demanding she do so.  When that occurred Ms Baxter saw the knife on the bed and was worried you were going to cut or kill her.  You forced her to have oral sex with you, which was for approximately 30 minutes, and you ejaculated in her mouth.

25Ms Baxter went into the bathroom and got dressed and saw that you were dressed.  She went to the kitchen and you apologised, saying you knew that 'wouldn't really cut it'.  You told Ms Baxter she was still family and that if she needed anything she should ring you.  You lectured her sternly about bringing men into her home and told her that once you had left the house she could also leave.

26Ms Baxter rang her friend Ms Fuentes at 2.51 pm.  Ms Fuentes described Ms Baxter as hysterical and screaming, that Ms Baxter told her she had made it perfectly clear she did not want to be more than friends with you and that you had forced her to get undressed and forced her to perform fellatio on you.  Ms Baxter said that she thought you were going to kill her and Ms Fuentes told Ms Baxter to contact police.

27Later that evening, Ms Baxter told another friend, Emelie Greenwood,[3] what you had done.  She sent Ms Greenwood a photo of you and your address as she was terrified something was going to happen to her.  She also told two of her friends that evening.

[3]A pseudonym.

28On Wednesday, 18 September 2019, Ms Baxter went to Cranbourne police station and reported your offending.

29During a pretext conversation on 18 September 2019, Ms Baxter said amongst other things that she was really suffering and did not know how to get past what happened.  You said ''…Cause you only sucked my cock, I didn't even fuck ya'.  You said, 'I really, really apologise'.  When Ms Baxter said it was really traumatic for her, you said. 'Oh, I know ... you reckon it wasn't killing me when I was driving'.  When Ms Baxter said, 'I thought you were gonna kill me, like I – I – you know, even just like the water in the bath, like I everything, you don't understand what I actually went through', you replied, 'I know, I know' and 'I wouldn't have babe, seriously I would never kill you'.  You told her you loved her too much.

30You asked if Ms Baxter had told anyone and she said 'No'.  You told her to talk to you to find out why you did it.  You said, 'I hurt myself after it all happened when I left.  I'm being serious to you.  It killed me.  I'm being honest with you.  It really, really, fuckin' killed me'.  You told police that when you were leaving, you said to Ms Baxter, 'I don't care if you never call me again'.

31On 19 September 2019, a search warrant was executed at your home in Dallas, during which you showed investigators the items located in the search, including the knife.  You were arrested and interviewed on 19 September at Broadmeadows police station.  Amongst your responses to questions you strongly denied any sexual contact between yourself and Ms Baxter on 14 September 2019.  You also denied making advances to Ms Baxter, going into the bathroom or doing anything wrong.  You provided your own detailed account of the incident during the interview.  At the outset of the interview you said, 'I've got nothing to hide.  I'll say everything'.  Regarding the allegations you said, 'That's something disgusting ... so literally that's the shock'.  You said you had a quick cigarette and then Ms Baxter tried to 'come onto' you, that Ms Baxter was the one trying to get physically sexual with you.  You said you told her you did not want anything to do with her and were trying to get back with your partner.  You said you only came as a friend.  You said you had a pocket knife in your bag but denied forcing Ms Baxter to do anything and denied using the knife.

32Regarding your 'relationship' with Ms Baxter, you said you had sex once at your house and twice at her home, that Ms Baxter had visited you for Ramadan and had slept on the couch, and that you slept in your bedroom.  You said it felt strange but 'she didn't wanna have nothing to do with me anymore'.

33You said you did not want to have anything to do with Ms Baxter, that you had blocked her number and did not speak to her for a month.  You described when at her house on 14 September that Ms Baxter wanted your advice, that Ms Baxter told you about a guy she had met on Facebook and that guy wanting to marry her.

34You said Ms Baxter became a little bit affectionate with you, that you said you were not really interested because you were trying to get back with your girlfriend.  You said after you took the beds apart and switched them, you left.

35You referred to the pretext conversation and said you apologised but questioned what you had done wrong.  When it was suggested to you that in the pretext call you had said, 'You only sucked my cock.  I didn't fuck you', you claimed that what you had said was, 'You tried to suck my cock but I didn't fuck you' and 'you went to suck my cock and I didn't fuck you' (Questions 923 to 929).  When it was suggested in the interview that you asked to have a bath, you disagreed and said Ms Baxter had asked you to have a shower.  You denied having a bath or a shower.  You said your penis did not go anywhere near her mouth.  'Officer, I am being straight out to you.'  '... on my own life, I didn't.'  When advised that Ms Baxter said you ejaculated in her mouth, you said 'Nah'. 

36It is clear in the interview you denied your offending, maintaining that position over an extensive period of time (that is the duration of interview) including when asked about the pretext call.

37There are a number of aggravating features of your offending:  that you had a knife and during the first penetration held it to her neck, a deliberate and overt act of violence to Ms Baxter.  Throughout the offending you made degrading and intimidating demands of Ms Baxter.  There were two separate acts of penetration in two locations (rolled-up charge), although as I say at the outset I am mindful that both occurred in the 'one incident'.  That Ms Baxter was in her home where she was entitled to feel safe and that there was a violation of Ms Baxter's trust and the friendship that followed your earlier consensual sexual relationship.

38You have pleaded guilty to this offence and you are entitled to have that fact taken into account in your favour and I do so.  The community by your plea of guilty has been spared the time and cost of a trial and witnesses have not been  required to give evidence upon your trial, and in that regard I refer in particular to Ms Baxter.

39I also accept you pleaded guilty to this charge at an early stage.  Whilst again I note at the time of your interview you denied your offending, shortly thereafter once your solicitors became involved discussions with the prosecution resulted in your plea of guilty to the charge before me.

40I accept your plea of guilty indicates some remorse for your offending and note Mr Halphen was not submitting remorse beyond your plea of guilty with no evidence before me beyond your plea of guilty.

41You have admitted a concerning and extensive criminal history from 2004.  I note, however, no offending of the type currently before me (i.e. sexual).

42You were sentenced on various driving offences in 2004 and 2006; on 21 June 2010 for obtaining property by deception, the matter adjourned until 21 June 2011.

43You appeared at Broadmeadows Magistrates' Court on 9 May 2012 on a charge of intentionally cause injury and failing to answer bail and were convicted and fined.

44You appeared at the Melbourne County Court on 26 May 2014 on charges of contravening a family violence intervention order, three charges of failing to answer bail, three of unlicensed driving, one of using threatening words in a public place and using a carriage service to harass and intentionally damage property.  You were convicted and placed on a Community-Based Order for 18 months, to perform 100 hours of unpaid community work and undergo various assessments and treatment.

45There were driving offences dealt with in 2016 and also, on 25 January 2016, contravening the Community Correction Order imposed on 26 May 2014.

46On 27 July 2017, you appeared at Broadmeadows Magistrates' Court on a charge of contravening a family violence intervention order and, with a conviction recorded were fined $1,000.

47At Heidelberg Magistrates' Court on 5 April 2018, you were before the court on a charge of unlawful assault, theft and driving offences, and were sentenced to 141 days' imprisonment.

48You then appeared at Werribee Magistrates' Court on 17 July 2019 on a charge of persistent contravention of a family violence order, were convicted and placed on a Community Correction Order for 18 months to perform community work and undertake treatment and rehabilitation programs.

49That order made on 17 July 2019 was breached by your offending before me which occurred approximately two months after that court appearance.  I am of course not sentencing you for breach of that Community Corrections Order.  The breach is, however, relevant to this offending in that you breached a Court Order, when I assess your rehabilitation prospects.  I discussed at some length with Mr Halphen my concern regarding your prior offending involving your then domestic situations.  Mr Halphen provided brief details of that offending.  It is clear you have difficulties with your relationships also apparent in the offending before me.

50A victim impact statement was before me from Ms Baxter, sworn 11 March 2020.  Ms Baxter has suffered considerably in the manner described in that statement.  She described your offending as having affected every aspect of her life, that the experience was frightening.  Since your attack upon her, she no longer felt safe and was fearful someone would come up behind her and attack her.  Since your attack, she was very teary, often crying and for long periods of time.  She had difficulty sleeping as memories of it replayed in her mind and tormented her.  Lack of sleep left her feeling less able to cope with other life challenges.  She also experienced periods of anxiousness, breathlessness, shaking and shutting down.  She described that, after your attack upon her, her memory was badly affected.

51Your offending had impacted upon her relationship with her partner.  Your offending triggered trauma from a past relationship she had been working hard to overcome.  Your offending towards her had set her 'progress back'.  She was concerned that the effects of your attack on her would ultimately erode her relationship with her partner as she tried to hold in her stress and worry to not burden him or disrupt their relationship.

52Socially she had noticed a remoteness from many of her friends and family and, without them around her, she felt isolated.

53Her flashbacks were frightening and difficult to cope with, taking her back to the attack.  She could see the knife flashing.  It triggered her symptoms of PTSD, anxiety and breathlessness, shaking and shutting down.  She felt she had lost control of her thoughts and emotions.

54She struggled to get things done during the day and had, since your offending, been unable to work.  She had been relying on payments from the government and handouts from friends and family, which added to her feeling of worthlessness.  She felt degraded and worthless.

55A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v DJK,[4] which was referred to in DPP v Toomey,[5] relevant to social rehabilitation.

[4][2003] VSCA 109 [17-18].

[5][2006] VSCA 90.

56The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.

57The prosecution applied for an order under s.11 of that Act.  You consented to this order being made and, in my opinion, that concession was appropriate.

58Your counsel, Mr Halphen, prepared a detailed written outline of submissions for your plea hearing (Exhibit 1) and addressed them in the course of it.  Also a chronology relevant to this plea (Exhibit 2). 

59Mr Halphen referred to your criminal history not involving sexual offending.  He urged you pleaded guilty at the earliest opportunity available to you and I have addressed these issues previously.

60Turning to your plea of guilty, Mr Halphen urged it demonstrated a willingness to accept responsibility for your offending, reinforced he submitted by your participation in courses on remand and your consent to being on the Sex Offenders Register.  You also accepted you needed further treatment for drug addiction and offence-specific matters.  Mr Halphen urged and I accept your plea was demonstrative of your 'developing remorse'. 

61In addition your plea, he urged, had utilitarian benefit.  That you pleaded guilty at a committal mention, the matter then proceeding by way of a hand-up brief.  He further urged that the utilitarian value of the plea was elevated, given it was entered when the courts' operations have been disrupted by COVID-19.  I discussed that submission with Mr Halphen, and my questioning of 'disruption'.  I shall refer to the impact of COVID-19 in a moment.

62Mr Halphen referred to your background and history. 

63He described your childhood as difficult, you father an alcoholic and a gambler, your parents fighting regularly, often at times becoming physical.

64Your relationship with your parents you said had now improved and you were living with them at the time you were remanded.  They continued to support you.

65You had worked from a young age until your mid-30s with a successful career as a semi-professional soccer player. 

66You have had two marriages in the past and three children, though you have no contact with any of them.  Since 2014, you had an ice addiction.

67Your parents came from Turkey to Australia in 1972.  Your parents were not only physically violent towards each other, at times regularly hitting you.  Your relationship with them you said had now improved.  You were living with them, as I said, until you were remanded. 

68Due to your father's gambling your parents moved a number of times, resulting in you attending three different primary schools.

69You attended one secondary school; however, your education you said was not a priority, rather you focused on soccer, playing competitively for Broadmeadows Unity. 

70At age 14, you were working part time at Zara Restaurant washing dishes, later becoming a waiter. 

71When 15, your mother left your father for approximately three years and during that time you saw little of her, remaining at your family home with your father, who was rarely present.

72Towards the end of Year 11 you left school, commencing working full time at Zara Restaurant, moving from waiter to chef.  You also continued to play soccer.

73In 1998, you met your first wife Flora Snider[6] when you were 18.  You lived with your parents for a short time with her before you moved out.  After you moved out you worked at Kings Kebabs and were also playing semi-professional soccer then for Hume United. 

[6]A pseudonym.

74The separation from your first wife was acrimonious and you did not meet your first son until 2009, the marriage having broken down in 2001 when your ex-wife was six months' pregnant.  After that marriage ended, you ceased working for a brief time before joining an agency, then working casually as a pick packer.

75You met your second wife Nancie Duke[7] in 2004, with a daughter and a son in that relationship.  You worked then as an orderly at Monash Medical Centre and continued to play soccer, finishing that career with Dandenong Thunder in 2007. 

[7]A pseudonym.

76That same year you and Ms Duke's brother opened Midnight Kebabs and you remained in that business until 2009, when your second marriage to Ms Duke broke down.

77Approximately a month after you separated from your second wife Ms Duke, you and your first wife Ms Snider[8] recommenced your relationship.  You and Ms Snider were together for 18 months, during which time you were also able to also see your son and daughter from your marriage to Ms Duke.

[8]A pseudonym.

78Your relationship with Ms Snider again broke down in 2011 and was again an acrimonious breakup, during which you became physical towards her and were fined $750 for causing injury to her and for failing to answer bail.  Despite not being able to see your son from your first marriage, you continued to see your two children each weekend from the second marriage.

79You worked as a cleaner for the following three years.

80In early 2014, at age 34, you tried ice for the first time and within a short time were using daily.

81Shortly after you commenced using ice, your second wife became aware of that and stopped you from seeing your two children. 

82You were unable to curb that use, continuing daily use.  It was in that setting you were placed on the Community Corrections Order in May 2014 for further offending against Flora Snider.  You breached that Order by committing driving offences and were fined and placed on a suspended sentence. 

83I gather you have not seen your three children since 2014. 

84In the setting of daily drug use, you began to gamble and it became problematic, forcing you to return to live with your parents.  You then worked in cash-in-hand jobs. 

85In 2017 you commenced a relationship with Aubrey Ferry,[9] who also abused ice.  In that setting, you were fined for contravening an intervention order and sentenced to a term of imprisonment for offending, which included unlawful assault of Ms Ferry. 

[9]A pseudonym.

86You were released from custody in April 2018 and in May 2018 met Leah Keenan.[10]  Initially this was a positive relationship when you were ice free; however, towards the end of 2018 you returned to ice use.

[10]A pseudonym.

87After an intervention order was put in place in early 2019, you and Ms Keenan continued to message and see each other and you were charged with persistently contravening the intervention order.  And I refer to your concerning history involving relationships by reference to the matters to which I have just referred.

88In the final few months before remand for this offending, you were using ice daily and it was in that setting that your offending occurred.

89Mr Halphen, I note, was not relying on the principles in R v Verdins & Ors[11] and that was an appropriate concession on the material before me.

[11](2007) 16 VR 269 ('Verdins').

90You speak to your parents daily and until the restrictions were introduced regarding COVID-19 in March 2020 they were visiting you on a fortnightly basis. 

91Mr Halphen submitted your parents suffered ill health and in custody you were concerned about their ability to cope.  Mr Halphen was not relying on family hardships (exceptional circumstances) rather relevant to general sentencing principles.  I agree regarding the latter.

92Prior to being remanded, you had attended a general practitioner and were prescribed Sertraline.  In remand on 12 October 2019 you were diagnosed with depression and again prescribed Sertraline.  You continue to take that medication in custody, as I understood.

93Approximately one month ago you had a colonoscopy and were awaiting the results.  Again I note Verdins was not relied upon and appropriately so.

94Mr Halphen referred to COVID-19 and the restrictive conditions in custody as a result.  Regarding COVID-19 and custody I accept it has impacted your ability to see your family and particularly your parents face to face (i.e. in person).  Further, you have not been able to use the prison gymnasium or prison oval since mid-March and courses offered to prisoners at this time are limited.  Also I note periodic prison lockdown and your being anxious about you contracting the virus in custody.

95Shortly after being remanded you worked on the assembly line, pressing plates, and instructed you had not used drugs in custody.

96You had completed a number of courses on remand until the COVID-19 impact on those and a number of certificates were tendered:  the Adapt program; Take Stock B, Learning for Life; Take Stock A, Jobs and Careers; Healthy Living, Houses and Homes; Family, Friends and Community; Prepare to Work Safely; Six-hour Ice Effects program (Exhibit 4).

97Addressing the standard sentencing scheme, Mr Halphen submitted the mid-range maximum penalty was a 'guidepost', merely one factor to which the court must have regard.  The instinctive synthesis remained a cornerstone of the sentencing process, which involved a two-stage process.  Mr Halphen referred to three cases involving standard sentence for rape:  DPP v Lockeyer (a pseudonym),[12] DPP v Dat (a pseudonym)[13] and DPP v Prodanovich.[14]   I have read them (Exhibit 3).

[12][2020] VCC 323 (‘Lockeyer’).

[13][2020] VCC 344 (‘Dat’).

[14][2019] VCC 1730 (‘Prodanovich’).

98It is always difficult comparing cases factually as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender.  I am, however, assisted by principles stated within the decisions to which I have been referred.

99Turning to the ancillary orders, you did not oppose the application for forfeiture, nor oppose the Sex Offenders RegistrationAct 2004 application for a period of 15 years. I will in a moment make those orders.

100Mr Halphen conceded a term of imprisonment was the only appropriate disposition, with a head sentence and non-parole period.  He is correct. 

101Addressing s.11A, Mr Halphen urged a non-parole period reflect 70 per cent of the head sentence.  In my opinion that would not be appropriate, mindful of the gravity of your offending and taking into account all matters in mitigation of sentence.

102Mr Halphen accepted community protection, deterrence and denunciation were important features when sentencing you.  He is correct.  Mr Halphen also correctly submitted your previous compliance with Court Orders had been poor.  This, as I have said, reflects upon my assessment of your rehabilitation prospects.

103Ultimately, regarding your rehabilitation prospects, I accept Mr Halphen's submission.  I have guarded optimism regarding those prospects.  You need to continue to address ice use to avoid relapse, and also alcohol use.  I am also troubled by your lack of compliance with Community Orders when you have been given the opportunity in the past and that your earlier offending occurred in a domestic situation (I note no sexual offence priors).  When sentencing you I must seek to maximise your prospects of rehabilitation as they may be.

104In my opinion, there is an element of specific deterrence required when sentencing you.  I do note, however, that you do not have any prior offending for sexual offences and have undertaken courses and employment in custody to assist to decrease your risk of further offending.

105The prosecution filed written submissions relevant to sentence (Exhibit C) and those were discussed with Ms Pillai and Mr Halphen.

106Ms Pillai submitted your offending was at the high end of objective seriousness given the number of aggravating features of it, including you went armed with a knife which you held to Ms Baxter's neck during the first instance of penetration and the aggravating features to which I have previously referred. 

107Ms Pillai referred to the maximum penalty of 25 years for rape and that at the time of this offending you were subject to a Community Correction Order, having been sentenced on 17 July 2019 for persistent contravention of a family violence order.  I have referred previously to my concern regarding your relationship history and offending.

108The prosecution conceded your plea of guilty was at an early opportunity and that it had utilitarian value.  I agree and I have previously referred to that. 

109Ms Pillai referred to the lack of admissions by you in your record of interview with police and your persistent denials, including possession and use of a knife.  You claimed the complainant was trying to come on to you.

110The prosecution submitted, and I accept, the victim impact statement of the complainant outlined significant and long-standing psychological effects upon Ms Baxter and also adverse physical effect on her health as a result of your offending.

111I was referred to Gray (a pseudonym) v The Queen[15] and also to DPP v Moses[16] that:

'Rape is an intensely personal crime.  The effects on the victim are not just those that flow from the physical invasion of their person and security but also from the more intangible loss of their rights and freedoms.  This significant impact of rape on the victim needs to be given proper weight in sentencing, it cannot be overlooked or undervalued.'

[15][2018] VSCA 163 [53].

[16][2009] VSCA 274 [18-19].

112I have already referred to 'social rehabilitation'.

113Turning to specific deterrence.  Ms Pillai submitted you had a prior criminal history.  I discussed with both counsel your breaches of intervention orders and that this offending before me involved controlling and threatening conduct by you after Ms Baxter told you that she just wanted to be friends with you.

114The prosecution conceded your conduct on remand went 'some way' towards reducing the importance of specific deterrence; however, the degree to which it did, the prosecution submitted, needed to be balanced against your absence of insight and consideration of your previous offending.  I agree.

115The prosecution accepted you have completed a number of courses and engaged in work in prison, which demonstrated some prospects of rehabilitation.  I agree. 

116The prosecution conceded your plea of guilty indicated some remorse for your offending, however, beyond that, Ms Pillai urged there was no evidence of 'genuine penitence contrition and a desire to atone' (Barbaro v The Queen, Zirilli v The Queen).[17]

[17](2012) 226 A Crim R 354, 365 [38].

117The prosecution submitted there was a need for general deterrence and denunciation when sentencing you.  I agree. 

118Turning to standard sentence, Ms Pillai submitted the objective seriousness of your offending was high and addressed the cases referred to by Mr Halphen and the distinguishing features of those and your offending.

119Ms Pillai submitted your offending was on a higher scale of objective seriousness than in Lockeyer, due to the use of a weapon, duration, and two acts of penetration, that yours was a persistent attack and ejaculating into Ms Baxter's mouth.

120Addressing Dat, Mr Dat pleaded guilty to two charges of digital penetration of his ex-wife.  In that case, Ms Pillai urged there was some element of violence but no weapon, unlike your case.  The offending was aggravated by the presence of children during the second rape (not your situation).

121Ms Pillai submitted that your offending was higher on an objective scale due to the use of a weapon, its duration, involving two acts of penetration of the complainant's mouth with your penis, and ejaculation into Ms Baxter's mouth.

122Ms Pillai submitted that Prodanovich was not a comparable case on the facts.  I agree.

123I have previously referred to the difficulty comparing cases.

124The charge previously stated before the court attracts the standard sentencing regime (s.5A and s.5B Sentencing Act 1991) with a standard sentence of ten years' imprisonment. The standard sentence is intended to represent the sentence for an offence in the 'middle range of seriousness' taking into account only objective factors of offending.

125The correct approach was set out in Muldrock v The Queen,[18] and the statutory scheme explained in Brown v The Queen.[19]  Standard sentence is but one of many factors to be taken into account in the sentencing process.

[18](2011) 244 CLR 120.

[19](2019) 59 VR 462, 470 [25, 55].

126Section 11A governs the setting of the non-parole period where standard sentencing is engaged.

127I am required when so sentencing to identify the facts, matters and circumstances which bear upon the judgement I have reached as to the appropriate sentence in your case and I have referred to this in detail in my sentencing remarks and reasons.

128The sentence I have passed is less that the standard sentence for the offence in Charge 1. In so determining, I have taken into account all of the matters I am required to consider under s.5(2) Sentencing Act 1991, including the standard offence for Charge 1 before me. I have taken into account any mitigating factors which apply to your offending. By a process of instinctive synthesis, I have arrived at the sentence I will in a moment announce. As part of this consideration I note your offending occurred in 'one incident'.

129As well as matters personal to you to which I have referred, including your rehabilitation prospects, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.

130In my opinion, specific deterrence is relevant when sentencing you, given you do have a criminal history and, concerningly, a number of appearances involving domestic relationships.  I stress and note no prior sexual offending alleged.

131I must also consider the need to protect the community from you and bear in mind the likelihood of you reoffending.  I am concerned about that, as I do not have any 'expert' report which specifically addresses your risk.  However, as I have said many times, if you continue to address your drug use when in the community, and your relationship issues, I have some comfort in that regard.

132I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally impose a just punishment.

133I sentence you as follows.

134On Charge 1, you are convicted and sentenced to eight years and six months' imprisonment and I set a non-parole period of six years and three months' imprisonment.

135Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it I would have sentenced you to a term of imprisonment of 12 years with a non-parole period of nine years and six months' imprisonment.

136Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have spent 321 days in custody by way of pre-sentence detention up to and including yesterday, 4 August 2020. I want that checked. And I direct that that be entered into the records of the court in a minute after I have checked with counsel that that is right or wrong.

137Through your counsel you have consented to the making of a forfeiture order and I make the order in the terms sought.

138As previously stated, I also order that you be subject to the Sex Offenders Registration Act for a period of 15 years from today's date, that is from the date of sentence.  Your concession in that regard in my opinion was appropriate.  There was no expert material before me addressing your risk and I am concerned about your risk, in particular given the serious nature of this offending in a domestic-type situation and your prior history, which involves breach of intervention orders, again in domestic relationships, although I am aware not for alleged sexual offending. 

139In addition, it is my assessment that you be subject to that Act, it also was including your admission by you that you required further ongoing treatment. 

140Now, PSD, is that right?

141MR HALPHEN:  I'm of the view it's correct, Your Honour.

142HER HONOUR:  So 321 you got?

143MR HALPHEN:  Not including today, yes, Your Honour.

144HER HONOUR:  Excellent.  How about you, Ms Pillai?  Have I got it right?

145MS PILLAI:  Yes, Your Honour.

146HER HONOUR:  All right.  Well, that declaration will be made, 321 days up to and including yesterday, 4 August 2020.  Now, I don't think there was anything further, no other orders.  As for documentation, what happens now is - I'm talking, when I say documentation - I'm talking about the Sex Offenders Registration Act.  As you both know, counsel, there needs to be some documents signed just acknowledging just these are documents I've just got to - I know you know what they are, but these are the documents that tell him what the Sex Offenders Registration Act is all about.

147It's not asking 'Do you want to be on that?'  I have made that Order and my associate is obliged to send these documents to him and I understand that's going to happen, to the prison.  If he doesn't want to sign them, that's all right, but she's got to do that.  But they'll then come back.  The Order's still made whether he signs them or not.  You understand that, Mr Halphen, I hope?  Yes.

148MR HALPHEN:  Yes, Mr Serin understands it too that it's also in his best interests to sign those documents as well.

149HER HONOUR:  All right.  Look, they're going to come through to the prison and he'll be bound and whatever - I don't know, hopefully that won't take very long.  He signs it where X marks the spot so to speak and then they come back to me and then I sign them.  Is that the order?  That's the way it's going to happen.  So you're all right with that, Ms Pillai?

150MS PILLAI:  Yes, Your Honour.

151HER HONOUR:  That's the way we're doing it now.  You're all right with that, Mr Halphen?

152MR HALPHEN:  I am, Your Honour.

153HER HONOUR:  Great.  All right.  Well, we're going to disconnect the link.  I've got another matter starting asap.  Sorry about the rush, but that's what happens when you're late, Mr Halphen.  Sorry.

154MR HALPHEN:  For myself, Your Honour, I apologise again.

155HER HONOUR:  No, look, don't worry.  It happens.

156MS PILLAI:  Your Honour, may I seek to say that I thought the matter was listed at 9.30 as well.  I just happened to get ‑ ‑ ‑

157MR HALPHEN:  Then I withdraw my apology, Your Honour.

158HER HONOUR:  So you're sticking up ‑ ‑ ‑

159MS PILLAI:  Yes, I'd just like to (indistinct) it was lucky that I was here on time.

160HER HONOUR:  Are you sticking up for Mr Halphen, Ms Pillai?

161MS PILLAI:  (Indistinct words.)

162HER HONOUR:  Well, maybe you're right, Mr Halphen.

163MR HALPHEN:  Your Honour, as my brother always says, we have Austrian origins and we're normally - always on time.  So I'm going to take Ms Pillai's defence, I'm going to run with it.

164HER HONOUR:  Yes, all right.  Well, apology accepted and maybe I'm just early.  I'm just too keen.  Don't worry.  Thanks for that.  We got there.

165MR HALPHEN:  Thanks, Your Honour.

166MS PILLAI:  Thank you, Your Honour.

167HER HONOUR:  All right, thank you.  We'll discontinue the link.

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