Director of Public Prosecutions v Seymour (a pseudonym)

[2023] VCC 2145

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL SEYMOUR (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2023
DATE OF SENTENCE:	24 November 2023
CASE MAY BE CITED AS:	DPP v Seymour (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2145

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Two charges of digital rape – Single episode – Guilty verdicts following a jury trial – Opportunistic offending of short duration – Significant age disparity – Offender, 55 years old, was the godfather of the 17-year-old victim – No remorse – No relevant prior history – Assessed as low risk of future sexual offending.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Flynn (a pseudonym) v The Queen [2020] VSCA 173; Dibbs v The Queen (2012) 225 A Crim R 195; Watkins (a pseudonym) v The King [2023] 203; R v Verdins (2007) 16 VR 269; DPP v Dalgleish (2017) 262 CLR 428.

Sentence:                  Total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Danos	Office of Public Prosecutions
For the Accused	Ms E Byrt	Tony Hannebery Lawyers

HIS HONOUR:

Introduction

1Carl Seymour,[1] on 8 August 2023, you were found guilty by a jury of two charges of rape.[2]

[1]        A pseudonym.

[2]Charges 1 and 2 on Indictment number N10217703, contrary to s 38(1) of the Crimes Act 1958.

2You were remanded in custody and the matter was adjourned to 17 November 2023 for a plea hearing.

3The offence of rape carries a maximum penalty of 25 years’ imprisonment. It is a category 1 offence.[3] The two offences of which you have been found guilty attract the standard sentencing regime. The standard sentence is 10 years’ imprisonment.

[3]Sentencing Act 1991 s 3(1).

4It now falls upon me to sentence you in respect of this offending.

Circumstances of the offending

5You will be sentenced on a basis consistent with the verdict of the jury. Your counsel accepts that this means you fall to be sentenced on the evidence given by the victim in relation to the offending that occurred in the kitchen area of her home on 20 February 2021.

6At the time of the offending, you were 55 years old. The victim, Paige Barker,[4] who was born in 2003, was aged 17.

[4]        A pseudonym.

7Paige lived with her mother, Patricia Barker,[5] and younger brother. She had a half brother who lived nearby. You were best friends with her father and had known the family for some 28 years. You had known Paige since birth and were her godfather. Unfortunately, Paige’s father passed away in 2014.[6] You maintained contact with the family and would often visit their home. While growing up, Paige would call you uncle.[7]

[5]        A pseudonym.

[6]From suicide.

[7]See VARE A36 – A 37.

8Paige is cognitively impaired. She has autism and suffers with anxiety and depression. She enjoyed horse riding from a young age. Following her father’s death in 2014, Paige would ride more often to help cope with the loss. Other than when riding horses, she would spend nearly all her time in her bedroom interacting with friends online.[8]

[8]T128 L20-31 and T129 L 1 – 9.

9Due to the restrictions during the COVID-19 pandemic, Paige was not able to ride her horse. On 20 February 2021, her mother arranged for Paige’s horse to be given to a friend who had a property with sufficient land to ensure the horse was able to receive appropriate training and exercise. You assisted Ms Barker in transporting the horse. Having done so, you returned with Ms Barker to her house around 5.30 pm. At some stage, Ms Barker’s elder son came over with his baby daughter. A friend of Ms Barker also visited.

10At one point in the evening after Ms Barker’s friend had left, you, Ms Barker, her son, and his baby were sitting in the lounge room immediately in front of the open kitchen area.

11Paige was in her bedroom. She had been sleeping and woke up around the time her friend, Kai[9], sent her a message on the Discord application asking if she wanted to play League of Legends. Paige said yes and Kai asked her to give him 10 minutes. Paige left her room to go to the kitchen.

[9]        A pseudonym.

12In the kitchen, Paige opened the fridge and took out a drink, as well as some left-over pizza. Upon realising that Paige was in the kitchen, you got up from the sofa and walked into the kitchen. The CCTV footage played during the trial[10] showed you leaving the lounge room to go into the kitchen at 19.55 hours and returning back into the lounge at 19.58 hours. It is accepted that the time stamp on the CCTV was some 8 minutes ahead of the actual time. In any event, it was during these three minutes that the offending occurred. In the kitchen, you gave her a hug which Paige described as a bear hug. At the time of the hug, Paige was facing you and standing next to the fridge. She had a slice of pizza in her hand and was eating it. While still hugging her, you began rubbing her stomach area, her thighs and backside over the clothing. Paige turned around while still in the same location so that her back was facing you. While still holding her, you placed your hands in her pants and began rubbing her around her vagina before placing your finger inside her vagina (Charge 1 – rape). Having removed your finger from her vagina, you then placed your finger in her anus (Charge 2 – rape). Both penetrative acts involved skin on skin contact. You then kissed her on her lips, which Paige described as a peck, and told her to go to her room and that you will come soon or words to that effect.

[10]Exhibit B.

13Paige described feeling frozen and her hand was shaking. She grabbed her drink from the bench top and returned to her room. She immediately complained to Kai via the messaging application.[11] She also sent a message complaining to her older brother’s partner and telling her to call the police.[12] Kai called triple zero at 8.14 pm. Police arrived at the house at 8.34 pm. At the time the police arrived you were asleep on the couch. You were taken to Werribee Police Station where due to your state of intoxication, you were placed in a holding cell until you were fit for interview.

[11]Exhibit D.

[12]Exhibit H. 

14The police interview commenced at 3.21 am. During the interview you stated that you had drank a lot of alcohol over many hours. You accepted you had given Paige a ‘bear hug’ and kissed her on her head but denied penetrating her vagina and anus. Your memory of the night was extremely poor, and you had no recollection of going into the kitchen. You believed you had hugged Paige in her bedroom but once shown the CCTV, accepted that it was in the kitchen. You didn’t even recall Paige’s older brother being present in the house on the night in question.

Background

15I have had regard to your background as set out in Ms Cidoni’s psychological report dated 10 November 2023,[13] and in your counsel’s written submissions dated 13 November 2023.[14]

[13]Exhibit 2.

[14]Exhibit 1.

16You are currently single, 58 years old, and have no children. You grew up in Altona and have two older brothers with whom you remain close. Your parents, who were born in Ireland, moved to Australia when your eldest brother was four years old. You describe your upbringing as a normal and happy one with both parents displaying warmth and love.

17You attended local schools in Altona and completed year 11. You then commenced and completed a four-year apprenticeship in printing. You established your own printing business which you operated for 10 years from 1990 to 2000. You then held employment in electricity reading for two years followed by reading gas meters for 14 years. Next, you were employed as a bus shelter cleaner for five years. Prior to your remand in custody, you were employed for 18 months as a water meter reader.   

18It is plain that you have a demonstrated history of consistent employment.

19At the age of 18, you were involved in a motorcycle accident which resulted in surgery on your left knee. You have undergone physiotherapy as and when needed.[15]

[15]There are no issues with the left knee at present as reported to Ms Cidoni – Exhibit 2 [41].

20You moved out of the family home at the age of 24. Your mother had dementia which worsened. You returned to live at home at the age of 30 to assist in the care of your mother and father. Both your parents have passed away, your mother passed away over 10 years ago and father some seven year ago. You continued residing in the family home until your remand.

21You have been in a number of relationships, the longest lasting eight years. Most of your relationships have lasted no more than three years. You told Ms Cidoni that all your relationships ended amicably.[16]

[16]Exhibit 2 [30].

22You reported to Ms Cidoni that you were diagnosed with anxiety 10 years ago by your general practitioner. Despite the diagnosis, you have managed your daily life, however, reported significant distress during these current proceedings.

23You began drinking alcohol in your teenage years. It commenced with you drinking your father’s alcohol. This has persisted over the years and the consumption escalated following the making of the allegations three years ago. Your prior history relates to a drink driving conviction which resulted in the loss of your licence. I note that at the time of the offending, you were very drunk.

24You began using cannabis at the age of 18 and used it on a daily basis until you turned 26. Since then, you have used it on an occasional basis. Between the ages of 20 and 30 you used amphetamine and ecstasy recreationally.

Psychological assessment

25I have had regard to Ms Cidoni’s report and her findings. Her pertinent findings include:

(i)A diagnosis of Alcohol Use Disorder, Generalised Anxiety Disorder (GAD) and Adjustment Disorder. She states that GAD involves persistent excessive worry and anxiety, contributing to heightened stress. Alcohol use, while temporarily alleviating symptoms, can heighten anxiety.

(ii)Ms Cidoni has undertaken a risk assessment and concluded that you pose a low risk of future sexual offending. Substance use upon release could elevate any risk.  

(iii)Your anxiety and adjustment difficulties have escalated in the custodial environment. The stress, isolation, and limited access to specialised mental health care within the prison system can further exacerbate these pre-existing challenges.

(iv)While you will remain sober during a period of enforced abstinence, there is a risk of relapse upon release.

(v)Urgent treatment for alcohol use is essential along with counselling to address your GAD and adjustment difficulties.

(vi)Your cognitive assessment revealed that your verbal reasoning abilities are in the low average range.

Nature and gravity of the offending

26I am sentencing you for category 1 offending attracting a maximum penalty of 25 years’ imprisonment and a standard sentence of 10 years. This should make it absolutely plain the seriousness with which Parliament views the offence of rape.

27I am unable to discount your sentence on account of a plea of guilty. You have demonstrated no remorse. Of course, the absence of these factors does not aggravate the offending.

28Any offending against a young and vulnerable victim involving penetrative acts to two private parts of her body is serious and abhorrent.

29Your victim was only 17 years old. There was a significant age discrepancy, with you being 55 years old. You offended against a vulnerable daughter of your deceased best friend. You were her godfather. You were a trusted family friend who frequented the family home regularly. While I accept it may not have been significant, your offending breached the trust that the victim and her mother had in you.[17] You committed the offending in the victim’s home, a place where she was entitled to feel absolutely safe. The offending conduct was brazen occurring not far from the lounge where her mother and half-brother were present.

[17]Dibbs v The Queen (2012) 225 A crim R 195 [89]; Watkins (a pseudonym) v The King [2023] 203.

30I accept the offending was opportunistic and of short duration. It occurred when you were significantly affected by alcohol. Your intoxication, other than providing context, is absolutely no excuse.

31While there is no victim impact statement, it is plain that the offending created fear in this young vulnerable victim who describes freezing and her hand shaking as a result of your offending.

32In sentencing you, I am mindful that the offending effectively represented a single episode. Any sentence must reflect that by directing substantial concurrency between the two charges.[18]

[18]See Flynn (a pseudonym) v The Queen [2020] VSCA 173, [116].

33General deterrence and denunciation are important sentencing considerations. Sexual offending against a young victim must send out a message that such conduct will be met by stern punishment and reflect the community’s abhorrence.

Matters in mitigation

34You are now 58 years old and have no relevant prior history.[19] As I stated earlier, you have enjoyed an exemplary work history. I have had regard to references from your brother and sister-in-law, as well as the reference from your neighbour.[20] They speak of your positive qualities including your caring nature. The references suggest that your offending was out of character. You have been instrumental in the care of your parents during their later years when they were in poor health.

[19]One appearance before Sunshine Magistrates Court in December 2001 for exceeding the prescribed concentration of alcohol for which you received a Community Correction Order and a three-year licence disqualification.

[20]Exhibit 3.

35Ms Cidoni has assessed your risk of any future sexual offending as low. Her assessment, your positive background, and the continued family support you enjoy, allow me to conclude that your prospects of rehabilitation are favourable. Accordingly, I am able to give reduced effect to specific deterrence as submitted by your counsel. It is important that you maintain abstinence from alcohol upon your eventual release.

36I take into account that this is your first time in custody. I note the issues identified by Ms Cidoni and take them into account in a general sense as part of your background. Despite tentative submissions in relation to principle five and six of Verdins,[21] ultimately, noting Ms Cidoni’s unclear findings, your counsel did not press them.

[21]R v Verdins (2007) 16 VR 269.

37When you entered custody, you endured four days in isolation and were unable to have a shower for three days. I accept that would have been a difficult and unpleasant introduction into custody. Beyond that, any submission of future Covid outbreaks making your time in custody onerous is at best speculative.[22]

[22]Your counsel accepted that her submission in [26] of her written submissions (exhibit 1) were unrealistic and purely speculative.

38You have been working in the woodwork department five days a week. You have seen a doctor and psychologist but have not been prescribed any medication. You have completed a number of courses including the ATLAS program and an Occupational Health and Safety course. You have maintained regular contact with your brothers.[23]

[23]I was told that the contact has been virtually.

Standard Sentence

39Sentencing requires taking into account many different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[24]

[24]Sentencing Act 1991 s 5A(1)(b).

40The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.

41The Court must only have regard to sentences imposed in cases where the standard sentence regime applied.[25] Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the Court is required to consider.[26] Each case ultimately turns on its own particular facts and circumstances.         

[25]Sentencing Act 1991 s 5B(2)(b). The Court is not, however, precluded from considering principles established in past cases.

[26]DPP v Dalgleish (2017) 262 CLR 428.

42The sentence on charges 1 and 2 will be lower than the standard sentence having taken into account the objective gravity of the offending as articulated earlier in these reasons and your personal circumstances.

43Having taken into account all relevant circumstances and factors, Mr Seymour, you are sentenced as follows:

44On Charge 1, rape, you are convicted and sentenced to 5 years and 6 months’ imprisonment.

45On Charge 2, rape, you are convicted and sentenced to 5 years and 6 months’ imprisonment.

46The sentence on Charge 2 will be the base sentence. I direct that six months of the sentence on Charge 1 be cumulated on Charge 2. This makes a total effective sentence of 6 years’ imprisonment.

47I direct that you serve a non-parole period of 4 years’ imprisonment.[27]

[27]Pursuant to Sentencing Act 1991 s 11A(4), the non-parole period must be at least 60 per cent of the head sentence.

Pre-sentence Detention

48Pursuant to s 18 of the Sentencing Act 1991, the period of 108 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Sex Offender Registration

49Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is 15 years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.