Director of Public Prosecutions v Sheppard (a pseudonym)
[2021] VCC 1587
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN SHEPPARD (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2021 and 10 September 2021 | |
DATE OF SENTENCE: | 15 October 2021 | |
CASE MAY BE CITED AS: | DPP v Sheppard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1587 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing injury recklessly – conduct endangering persons – common assault – threat to kill – false imprisonment – threat to inflict serious injury – serious example of rape – Application of Verdins.
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269.
Sentence: Total effective sentence of 9 years and 3 months imprisonment with a non-parole period of 6 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms E. McKinnon | Furstenberg Law |
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.
HIS HONOUR:
Introduction
1Lachlan Sheppard,[1] you have pleaded guilty to an indictment containing eight charges being:
[1]A pseudonym.
(a) Two charges of causing injury recklessly, the maximum penalty for which is 5 years imprisonment;
(b) Conduct endangering persons, the maximum penalty for which is 5 years imprisonment;
(c) Common assault, the maximum penalty for which is 5 years imprisonment;
(d) Make threat to kill, the maximum penalty for which is 10 years imprisonment;
(e) False imprisonment, the maximum penalty for which is 10 years imprisonment;
(f) Threat to inflict serious injury, the maximum penalty for which is 5 years imprisonment; and
(g) Rape, the maximum penalty for which is 25 years imprisonment.
2
You have also pleaded guilty to the related summary offence of driving whilst authorisation suspended, the maximum penalty for which is 240 penalty units or
2 years imprisonment.
3Rape is a Category 1 offence pursuant to s 3(1) of the Sentencing Act 1991. You must be sentenced to a term of imprisonment for that offence. Rape is also a standard sentence offence pursuant to s 5A of the Sentencing Act 1991, the standard sentence being 10 years imprisonment.
Summary of Offending
4An amended summary of prosecution opening was tendered[2] on the plea and was read aloud in court. In shorter form, the circumstances of your offending are as follows:
5
You were in a relationship with the victim for approximately four and a half years until May of 2018. From January 2019, you were in an on-and-off relationship with the victim. At the time of offending you were 33 years old and the victim was
26 years old.
[2]Prosecution Exhibit 1.
6Between 17 and 18 February 2018, you were at home with the victim. The victim told you she was not happy and wanted to take a break from the relationship. You reacted by throwing the victim around the house and pushing her against the wall. As the victim went to leave the house, you came up behind her and put both of your arms around her chest. You squeezed hard until the victim heard two pops. You then threw the victim to the ground (Charge 1, causing injury recklessly).
7On 16 September 2019, the victim and her housemate intended to stay away from the home for a few days. They drove to a Woolworths carpark. You texted the victim and said “I know where you are” and sent a screen shot of a map indicating the victim’s location.
8On 19 September 2019, you met with the victim and said you would get professional help if it meant you could resume your relationship with her.
9On 27 September 2019, you were staying with the victim at a room in the Novotel in Melbourne. The victim left the hotel the next morning to meet her friends to watch the AFL Grand Final. She did not want to stay with you. At approximately 8.30pm that night, she returned with her friend to collect her belongings. The victim entered the hotel room while you were in bed.
10The victim lay to the left of you. You sat up and told the victim you were going to see your psychiatrist on Thursday. You asked the victim if she would come with you. The victim agreed, but then commenced to text her friend. You grabbed the phone from the victim’s hand and ripped the Fitbit off her wrist.
11You walked around the hotel room before returning to the bed. You put your forearm on the victim’s throat and leant forward with your body weight. You kept your arm there for approximately 10 seconds. The victim felt like she could not breathe (Charge 2, rolled up charge of conduct endangering persons).
12
You grabbed your scarf and said “the only way you will get out is when you step over my lifeless body.” You walked to the door of the hotel room and put one end of the scarf around the door handle and another around your neck. You used your left hand to tighten the scarf around your neck. The victim walked toward you. She told you to stop. You kicked the victim in the stomach with your right leg
(Charge 3, rolled up charge of common assault). You stopped choking yourself with the scarf. You said “were you seriously going to let me do that?”
13You sat on the luggage chair and said you were sorry for hurting the victim. The victim asked if she could leave. You said she could not unless she told you the truth about everything.
14You pushed the victim back onto the bed with both hands. You pushed a pillow onto the victim’s face for approximately 10 seconds (Charge 2, rolled up charge of conduct endangering persons). The victim thought you were going to kill her. You lifted the pillow from the victim’s face and said “are you going to tell me the truth now or is this going to keep happening?”
15The victim made further denials in response. You pushed the pillow once more onto the victim’s face (Charge 2, rolled up charge of conduct endangering persons). After a couple of seconds, you lifted the pillow to one side and punched the victim in the face through the pillow approximately three times. This caused the victim’s nose to bleed (Charge 3, rolled up charge of common assault).
16You pinned the victim to the bed by her shoulders. The victim said “I’ll tell you everything if you let me go.” You stood up and threw toilet paper at the victim. The victim’s nose was bleeding onto the doona cover which you attempted to wash off with water.
17The victim made up a story about being contacted by your ex-girlfriend. You approached her on the bed and put both hands around the victim’s neck. You squeezed hard for approximately 10 seconds (Charge 2, rolled up charge of conduct endangering persons). The victim thought she was going to die. You whispered to the victim “you’re not fucking getting out of this”. You released your grip then spat in the victim’s face. (Charge 3, rolled up charge of common assault).
18The victim attempted to leave the hotel room. She got to the door. You grabbed her hair and pulled her backward. You swung her around, throwing her to the floor (Charge 6, false imprisonment). The victim grazed her knee, elbow and ankle. She screamed for help. You told her “you’re not getting out, don’t try that bullshit.” You said to the victim that if anyone came to the door, she was tell them she was fine.
19The victim was lying on the floor. You got on top of her, with your legs on either side of her stomach. You put one hand on either side of the victim’s head and slammed it into the ground approximately 5 times (Charge 3, rolled up charge of common assault). The victim was pleading “I’m sorry, I’m sorry” while this was occurring.
20You got off her. You allowed her to have a tablet of Nurofen before continuing to talk to the victim. You became angry. You straddled her waist on the couch. You put both hands around her neck and squeezed (Charge 2, rolled up charge of conduct endangering persons). The victim lost consciousness. She woke up to you slapping her face and saying “wake up”.
21You stood up and picked up a bar stool which contained a corkscrew and a knife. You said to the victim “I want you to pay for what you’ve done to me, I want you to slit your wrists.” You handed the knife to the victim. She extended her left wrist and attempted to cut from her hand towards her elbow. The knife was blunt and only left a scratch on the victim’s arm (Charge 4, rolled up charge of causing injury recklessly). You told her to try harder but eventually took the knife from her hand.
22You became angrier and climbed on top of the victim. You placed your left hand around the victim’s neck and squeezed. You pointed the corkscrew at the victim’s left eye and told her you were going to gouge her eye out. The victim closed her eyes. You pushed the tip of the corkscrew against her eyelid, causing a small cut (Charge 4, rolled up charge of causing injury recklessly).
23You then sat on the couch next to the victim and pointed a glass bottle at the end of the table and said you would smash it and put it in the victim’s vagina. The victim pleaded with you not to hurt her. The victim got up and ran toward the hotel room door and pushed the handle down. You grabbed the victim by her hair and threw her to the ground, causing her to fall by the sliding door of the wardrobe (continuation of Charge 6, false imprisonment). You climbed on top of the victim, grabbed her hair and slammed her head down on the tracks of the sliding wardrobe door approximately six times (Charge 4, rolled up charge of causing injury recklessly).
24
You then said to the victim “you’re fucking dead now, I’m going to kill you” before getting off the victim and saying “look at your face, you made me do that.”
(Charge 5, make threat to kill)The victim crawled back into the middle of the room. You forced the victim onto her back and put your hands over her mouth and nose causing the victim to struggle for breath (Charge 2, rolled up charge of conduct endangering persons).
25You then put both hands on either side of the victim’s head. You whispered “lying cunt” before biting the victim’s nose, causing swelling. You then slammed the victim’s head onto the ground approximately four times (Charge 4, rolled up charge of causing injury recklessly). The victim lost consciousness before waking up to you saying “all you have to do is tell me the truth and I will let you go.”
26
You threw a t-shirt at the victim. You told her to “put this over your head, I’m sick of looking at your ugly face.” You took the victim’s phone out of your pocket and asked the victim to show you how your ex-girlfriend had contacted you. You said “promise me you’re telling the truth because if you’re not, next time I see Carrie[3] step out of the car I won’t hesitate to run her over” Carrie is the victim’s sister.
(Charge 7, make threat to inflect serious injury).
[3]A pseudonym.
27You asked the victim to perform oral sex on you. She refused. You persisted in this request and she continued to refuse. Eventually the victim relented and agreed. You sat to the left side of the victim on the couch. You pulled your pants down. You grabbed the corkscrew. You pointed it at the victim’s face and said “if you bite me, I will stab you in the face.” The victim performed oral sex on you until you ejaculated in the victim’s mouth. You demanded she swallow the semen which she did (Charge 8, rape). You kept the corkscrew pointed at the face of the victim whilst you pulled your pants up. You told the victim to stand and give you a hug, which she did.
28You lay in bed with the victim who slept for a few hours. The victim got up during the night to go to the bathroom. The victim told you her stomach was hurting. She said she needed to go to the hospital. You agreed to take the victim to the hospital after taking her to your parent’s house. You told the victim to cover her injuries and bruises with makeup.
29
You told her to wait in the hotel room for 5 minutes after you left. You said you would kill yourself if she did not follow in that time. You collected the victim’s car keys from reception and left. The victim then approached reception and told the hotel worker what had occurred in the preceding hours. Police and an ambulance were called, but you had already driven away in the victim’s car.
(Summary Charge 6, drive whilst authorisation suspended).
30Later that evening, a full body examination was conducted on the victim which revealed the extent of the injuries inflicted by you. You caused significant bruising and abrasions to the victim’s head, neck, chest, abdomen and each limb.
31
You were arrested at your home on 30 September 2019 and made a largely
‘no-comment’ interview.
Impact on the Victim
32The Victim Impact Statement of Alannah Page[4] dated 5 February 2021 was tendered on the plea and read aloud by the victim in the course of the plea hearing.
[4]A pseudonym.
33Ms Page says that she is plagued by constant nightmares, not only as she sleeps but also as she lays awake. She says that “each day I face a different battle and I have my good days and bad ones, when the pain of guilt and regret from what happened becomes intolerable, and it’s days like this that I wish I could fall asleep and stay that way.”
34Ms Page demonstrated enormous grace in the kindness she expresses towards you. She says that she forgives you and that her “heart holds no hate or anger for you or your actions”. She mourns the loss of the “caring and ever generous man I once knew” and attributes your descent to your drug addiction.
35The impact of a crime is a matter to be considered on sentence pursuant to s 5 of the Sentencing Act 1991, and I do so.
Nature and Gravity of Offending
36The collective criminality represented by the charges on the indictment is very substantial indeed. Your actions on the night of the offending were elongated, terrifying, and cruel series of violent acts directed towards a woman you purported to have been in a loving relationship with.
37The offence of rape is inherently serious in any circumstance. So much is evident from its maximum penalty. Charge 8 is, in my view, a particularly serious example of that offence. The offence was committed against your domestic partner. She was imprisoned in the hotel room and without any means of escape nor any ability to seek assistance. By the time you raped her, she had already been subjected to multiple acts of serious violence at your hands. She clearly and repeatedly refused your request for oral sex.
38When she eventually relented to your demands, it was not by any means an act of true consent in the context of the violence that preceded it. You were clearly aware that she was not freely consenting, but persisted with the sexual contact nonetheless. You enforced her compliance with a weapon, namely the corkscrew you pointed at her face.
39You were sufficiently aware of the circumstances of the act, and the possibility that she may try to resist by biting your penis, that you specifically threatened to stab her if she did that.
40Your sexual violence towards Ms Page culminated in you forcing her to swallow your semen. This added an additional element of humiliation and subjugation to what was already a disgraceful imposition of the power your violence towards her had created.
41
Charge 8 is in my estimation a very serious example of rape and above a
mid-range example of the offence. This offence is the most serious offence before the court and when the sentence is structured, will be the base sentence.
42As for the other offences on the indictment, I must impose sentences that are appropriate to their individual gravity whilst also remaining conscious not to doubly punish you for matters already taken into account as aggravating features of the rape.
43Charge 1, recklessly causing injury, differs from the other offences in that it was an offence committed some 19 months prior to the hotel room incident. The offence involves a single act of squeezing Ms Page. The injury was tenderness to her rib area. There is no suggestion that the injury did not fully resolve within a relatively short time. Your actions were committed in the context of you going “crazy” after Ms Page suggested you should break up. This offence is one of domestic violence against a partner, however in all the circumstances is not an upper end example of the offence.
44Charge 2, reckless conduct endangering person, is a serious example of the offence. The charge is “rolled up” to include a series of objectively dangerous actions that you took towards Ms Page in the hotel room in the hours prior to the rape. The conduct includes pushing her onto the bed in a way that made her feel that she couldn’t breathe, two distinct episodes of choking her for such time that she passed out and thought she would die, plus a further action of placing your hands over her mouth and nose that caused her to struggle for breath.
45Your actions were deliberate, cruel, and placed her at significant risk. Your acts that repeatedly restricted her breathing placed her at substantial peril and must have been terrifying.
46Charge 3, common-law assault, is similarly a rolled up charge comprising a series of separate acts of violence. These actions comprised a kick to her stomach, multiple punches to her face through the pillow, spitting in her face, and slamming her head into the ground approximately five times. The violence comprising this single charge is very significant. This is a very serious example of the offence.
47Charge 4, recklessly causing injury, is also a rolled up charge. The charge covers the incident where you forced her to scratch her own arm. Whilst the physical injury inflicted was minor, the broader circumstances add to the gravity of that act. You pushed the tip of a corkscrew into her eye, and caused a small cut. The cut may have been small but the fear generated by that act must have been substantial.
48The final component of the charge involved you slamming her head into the ground approximately four times to the point that Ms Page believed she lost consciousness. The number of separate violent acts, and their nature, make this a serious example of the offence even in the absence of any physical injury that has required treatment or hospitalisation. In relation to Charge 5, Ms Page had every reason to accept your chilling words as genuine and I consider this to be a serious example of the offence of threat to kill.
49
By your actions and words you turned that hotel room into a prison cell for
Ms Page. This is the subject of Charge 6, false imprisonment. Whilst the broader circumstances make this a serious example of that offence, much of the conduct that denied Ms Page her liberty to leave is covered by some extent by other charges on the indictment.
50The threat you made to “run over” Ms Page’s sister, that is the subject of Charge 7, did not involve you placing Ms Page in immediate fear for her sister's safety. By your plea you are conceding that you were at least reckless about Ms Page taking this threat seriously, and in the context of the violence you had already perpetrated against her to that point in the incident it is highly probable that she did believe it. This offence is, however, of significantly lesser gravity than others committed in the course of the incident.
Personal Circumstances
51You were aged approximately 33 at the time of the offending and are 35 at sentence. You were born in Bendigo and are the eldest of three children. You describe an uneventful childhood.
52You completed Secondary School to Year 12 however were not academically motivated as you were focussed on sporting pursuits.
53You have a strong history of full time employment after completion of Year 12 until your arrest. You completed further study including a traineeship as a cable joiner, a two year TAFE course in Communication Technology and a three year apprenticeship as a High Voltage Power Linesman. You have worked in the power and communications industries, including as a power linesman. In 2016, you established your own business which undertook and completed power and communication projects and contracted to the NBN network.
54You commenced drinking alcohol at age 18 and quickly became a ‘binge drinker’. You report than from 2018 you began drinking daily. You commenced illicit substance use at age 25 including ‘ice’, amphetamines, speed, MDMA and ketamine. Whilst your substance abuse began as experimental and sporadic at social events, your ‘ice’ use gradually increased and escalated in 2017. You used ‘ice’ and amphetamines to work long hours in the business you had established. You consulted a drug and alcohol counsellor during 2018 and 2019, however admit that your treatment was superficial.
55A bundle of 11 character references was tendered on your plea.[5] These references demonstrate significant support from your family, friends and local community.
[5]Defence Exhibit 5.
56Whilst on remand you have been employed in screen printing.[6] You have completed a number of educational courses as outlined in the tendered Prisoner Educated Summary Report dated 24 November 2020.[7] You have completed programs to assist your rehabilitation including ‘Alcohol and Me’, ‘Keeping Your Cool’, ‘Building Better Relationships’, ‘Check Your Thinking’ and ‘Ice and Me’.[8]
[6]Defence Exhibit 6.
[7]Defence Exhibit 8.
[8]Defence Exhibit 6.
Mental Health and Verdins[9] Application
[9]R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’).
57
Tendered on the plea were the reports of Forensic Psychiatrist
Dr Jacqueline Rakov dated 27 September 2020 and 21 January 2020,[10] and the report of Forensic Psychologist Dr Mathew Barth dated 26 April 2021.[11] Both
Dr Rakov and Dr Barth gave evidence at the plea hearing.
[10]Defence Exhibit 4.
[11]Defence Exhibit 3.
58At the time of this offence, you had a psychiatric illness, namely schizophrenia. There is evidence that at the time of your offending on the day of the incident in the hotel, you were enduring symptoms of that illness, namely a psychotic episode. Based on this evidence it was submitted on your behalf that certain of the principles outlined in Verdins have application in your case. Your consumption of drugs was a contributing factor to the intensity of your psychotic episode. It is difficult to precisely quantify what was the relative influence on your behaviour from the organic schizophrenia symptoms as against the effect of the ice that you had voluntarily ingested.
59
The relative consideration to be given to limb one of Verdins namely what impact your mental illness has your moral culpability for the offending also varies depending upon the individual charge being considered. Your psychiatric episode contributed to you harbouring paranoid delusions about Ms Page. You incorrectly believe that she was causing you harm and was participating in broader conspiracies to surveil you. These paranoid beliefs, sourced to some extent from your mental illness, provided the motivation for you to act violently towards
Ms Page.
60That you were subject at the time to paranoid beliefs fuelled by mental illness and causing irrational feelings that Ms Page posed a threat to you does mean that your moral culpability for your offending is somewhat reduced.
61However, you have engaged in actions over the course of the incident that you knew were causing harm to Ms Page. There is no suggestion that your mental illness prevented you from understanding the impact of your actions upon her, nor limited your ability to understand the consequences of your actions even if they were motivated by delusion.
62It was evident that you were well aware of the potential legal consequences of your behaviour. When the victim told you she needed to go to the hospital, you said “if you do that, you know I’m fucked”. You required the victim to cover her injuries with makeup. Despite your psychosis, you demonstrated an awareness of the wrongfulness of your behaviour. The extent to which your moral culpability is reduced is, in my view, somewhat limited.
63Your mental illness has less impact on Charge 8, rape, than for the other offences committed in the course of that incident. You made a request for a sexual act from Ms Page. The steps you took to achieve your sexual desires were calculated and rational. You understood that she was acting under compulsion. You took steps, namely the threat with the corkscrew, to prevent her taking any action to escape. Your conduct was purposeful, selfish and motivated by sexual gratification.
64Your actions show that you understood that Ms Page was not consenting and that your actions could result in legal jeopardy for you. Whilst your mental illness has impacted you to the extent that you have been disinhibited, it has not affected you to the point that your understanding of the wrongfulness of those actions had been especially diminished. Neither has your awareness of the fact that she was not consenting and was being harmed by your actions been particularly impaired.
65Dr Barth in giving evidence on your plea stated as follows;
“My view is that there's, in terms of the paranoid delusions, there's I think a fairly clear link with the violent aspect of the offending against the, the victim in terms of the actual physical assaults I mean. But I agree. There's not, um, he's not suffering sexual delusions. Um, I think the, the rape again is more, it's a pure use of sexual violence as a means of power and control. And so whilst I'll see his illness as having a clearer link to the violence prior, I agree that I don't see it clearly with the sexual offending and that's why sex offender treatment remains relevant. Because the sexual entitlement that's inherent in it. The use of sexual violence means of power and control is something that needs to be treated. Even though it was a one off, it's still, still very, very serious and still needs to be treated in, um, a sexual offender program”
66I accept that your mental illness makes it appropriate for the application of general deterrence to be slightly moderated. Your mental illness does not, however, render you a completely inappropriate vehicle for general deterrence.
67Specific deterrence still does have application in this case. You are capable of appreciating the consequences of your actions. You have an understanding that if you were to resume the use of illicit drugs that your ability to remain offence free would be imperilled.
68Your mental illness does, make imprisonment more burdensome for you than for someone without that condition. I take that into account in mitigation of sentence.
69The psychosis that was evident at the time of the offending commenced whilst you were in the community and using illicit drugs. Since going into custody, you have been diagnosed and treated for schizophrenia, and your psychotic symptoms have subsided. Your mental health now is more stable than it was at the time of offending. There is not any evidence to suggest that your mental illness is likely to deteriorate as a result of your incarceration. As such I do not consider that limb six of Verdins has any application in this case.
Prospects of Rehabilitation
70You are not a youthful offender but at age 35 you are still a young man. There are no prior matters alleged of any relevance. Your prior criminal history is limited to four speeding infringements and one infringement for driving under the influence of alcohol. You are otherwise of good character, a conclusion that is reinforced by the array of character references tendered on the plea. This is your first time in custody.
71Your prospects of rehabilitation are closely correlated to your capacity to remain abstinent from drug use and to continue to engage with treatment for your schizophrenia. You have previously demonstrated a capacity to retain employment at a high level, and I note the fact that you have access to social and family support.
72Dr Barth undertook a number of tests to assess your risk of recidivism. The individual measures varied depending on the test used. You were found to be a low risk of sexual recidivism using the Static-99R test, a moderate to high risk of sexual recidivism using the RSVP tool, and a moderate to high risk of violent recidivism.
73Dr Barth says in his report that ‘Mr Sheppard was able to display a developing appreciation for the noxious impact of drug use on his life and expressed a desire to participate actively in more intense substance abuse treatment to improve his rehabilitative prosects.’
74Dr Rakov generally opined that you were a low risk of re-offending. She specifically stated that the gravity of your offending should not be taken to be indicative of your risk of recidivism.
75Your prospects of rehabilitation will depend on whether you continue engagement with appropriate professional services both within the prison environment and outside. If you can achieve that, and the current indications are positive, you have reasonable prospects of successfully rehabilitating.
Plea of Guilty and Remorse
76You first indicated a plea of guilty to the charges comprising this indictment at the committal hearing of the matter. The plea of guilty was not at the earliest available opportunity. The victim was cross-examined at the committal hearing.
77
Your plea of guilty has saved the time and resources that would otherwise have been expended on contested proceedings in this court. You have spared
Ms Page what would have been the undoubtedly traumatic experience of giving evidence again at trial. Especially having regard to the pressures placed on court listings because of pandemic restrictions, your plea of guilty has significant utilitarian value.
78I consider your plea, in combination with other expressions of remorse namely in the letter you have provided to the court[12] and as expressed to Dr Barth shows that you have a level of remorse for your offending.
[12]Defence Exhibit 7.
Impact of COVID-19 and Burden of Imprisonment
79The vast portion of your time on remand has been served at a time when pandemic restrictions have made the prison environment more onerous than would otherwise be the case. It is highly likely that measures including limitations on visits and access to programs and courses will persist for the foreseeable future. I take this matter into account in mitigation of sentence.
80Your father is a former prison officer who gave evidence at your plea hearing. I also accept that his previous occupation causes you understandable concern for your safety. This anxiety is an additional burden of imprisonment borne by you.
Sentencing Principles
81Whilst I accept that the application of general deterrence is somewhat moderated because of what I have found to be a relevant mental health condition, it still retains significance in the sentencing matrix. I must also impose a sentence that serves to deter you from further offending. The nature of your offence means that denunciation, protection of the community, and the need to adequately punish you for your offending are all important sentencing considerations. In addition, I must consider your prospects of rehabilitation as I have found them to be.
82You are to be sentenced as a ‘serious violent offender’ pursuant to s 6B(2) of the Sentencing Act 1991 in relation to Charge 7.
83On this charge I must consider protection of the community from you as the primary sentencing purpose and must enter into the records that you are sentenced as a serious violent offender for Charge 7. The circumstances do not require that a disproportionate sentence be imposed in relation to that charge.
84I must impose sentences for each offence that are appropriate for their individual circumstances. I must ensure that the sentence is structured in such a manner that the total effective sentence reflects the totality of the criminal conduct on the indictment having regard for the matters in mitigation.
85There must be some cumulation to reflect the separate criminality reflected by the individual charges. Those orders for cumulation must ensure that you are not doubly punished for conduct that has already been taken into account as an aggravating feature of the rape, and must be moderated in order to arrive at a total effective sentence that is appropriate considering the entirety of the circumstances of the case including the matters in mitigation.
Sentencing Submissions
86Ms McKinnon, on your behalf, appropriately conceded that a significant term of imprisonment was warranted, however sought that a shorter than usual non-parole period be imposed.[13]
[13]Defence Exhibit 1.
87Mr McKenry, who appeared on behalf of the Director of Public Prosecutions, submitted that a term of imprisonment with a non-parole period was required having regard for the gravity of the offending.
88The sentence I intend to pass is less that the standard sentence for the offence in Charge 8 rape. 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 sentence for Charge 8 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.
Sentence
89Mr Sheppard, I sentence you as follows:
90
On Charge 1, causing injury recklessly, you are convicted and sentenced to
3 months imprisonment.
91On Charge 2, conduct endangering persons, you are convicted and sentenced to 21 months imprisonment.
92
On Charge 3, common assault, you are convicted and sentenced to
15 months imprisonment.
93
On Charge 4, causing injury recklessly, you are convicted and sentenced to
18 months imprisonment.
94
On Charge 5, make threat to kill, you are convicted and sentenced to
6 months imprisonment.
95
On Charge 6, false imprisonment, you are convicted and sentenced to
12 months imprisonment.
96
On Charge 7, threat to inflict serious injury, you are convicted and sentenced to
3 months imprisonment.
97
On Charge 8, rape, you are convicted and sentenced to 7 years and
6 months imprisonment.
98On Summary Charge 6, driving whilst authorisation suspended, you are convicted and fined $500.
99I order that 6 months of the sentence imposed on Charge 2, 6 months of the sentence imposed on Charge 3, 6 months of the sentence imposed on Charge 4, and 3 months of the sentence imposed on Charge 6 be served cumulatively with each other and on the sentence imposed on Charge 8.
100That makes a total effective sentence of 9 years and 3 months.
101Pursuant to s 11A(4) of the Sentencing Act 1991, I must fix a non-parole period of at least 60 per cent of the head sentence if that sentence is less than 20 years imprisonment unless it is in the interests of justice not to do so. Having regard to that section I order that you must serve 6 years and 3 months before becoming eligible for parole.
102Pursuant to s 18(4) of the Sentencing Act 1991, I declare you have spent 745 days in custody by way of pre-sentence detention not including today and I direct that be entered into the records of the court.
103Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty and been found guilty I would have sentenced you to 11 years and 6 months with a non-parole period of 8 years and 6 months.
104The prosecution have made application for disposal order, this was not opposed by counsel on your behalf and I make that order in the terms sought.
105Are there any other orders required Mr McKenry?
106MR McKENRY: No. There's no further orders required. I just want to make clear that there was application for a sex offender's registration order but was discretionary. I take it Your Honour is not exercising that discretion.
107HIS HONOUR: So perhaps, so sorry, Mr McKenry, you didn't make an application?
108MR McKENRY: No, I have not. All that was noted was that the discretion existed. I want to make it clear that Your Honour is not making such an order rather than it being it wasn't an oversight.
109HIS HONOUR: You ask, I'm not going to do anything I am not asked to do but are you making an application for it?
110MR McKENRY: There is no application, Your Honour.
111HIS HONOUR: Very well. In which case I won't make that order.
112MR McKENRY: Thank you.
113HIS HONOUR: Even though, Mr McKenry, it would be highly unusual in these circumstances for an order not to be made, wouldn't it?
114MR McKENRY: Pardon me a moment while I look at the documents, Your Honour. So it was paragraph 55 right at the end of the opening, Your Honour.
115HIS HONOUR: Yes.
116MR McKENRY: Simply the statement that he was not subject to mandatory sex offenders registration and no application had been made in the circumstances. I am not trying to create a problem, Your Honour. I am simply making sure it's - - -
117HIS HONOUR: No, no. Okay. As I said, there's no application from the prosecution, I won't make that order. Thanks.
118MR McKENRY: If Your Honour pleases.
119HIS HONOUR: Thank you. Anything further that's required, Ms McKinnon?
120MS McKINNON: No, Your Honour.
121HIS HONOUR: Thank you. In which case I will adjourn the court until 10.30.
122MR McKENRY: As Your Honour please.
123MS McKINNON: As the court pleases.
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