Director of Public Prosecutions v Sherman (a pseudonym)
[2024] VCC 299
•8 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLOW SHERMAN (a pseudonym) |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August; 10 November; 12 December; 14 December 2023; 21 & 23 February 2024 | |
DATE OF SENTENCE: | 8 March 2024 | |
CASE MAY BE CITED AS: | DPP v Sherman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 299 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Rape – False imprisonment – Make threat to kill – Common law assault – Resist emergency workers on duty – High objective gravity – Premeditated and protracted episode of offending – Victim impact – Deprived childhood – Complex psychiatric and psychological profile – Foetal Alcohol Spectrum Disorder (FASD) – Guilty plea – Youthful offender – Reasonable prospects of rehabilitation – Suitability for Youth Justice Order – Disputed Youth Justice Suitability Report – Youth Justice Order not appropriate – Sentencing principles – Standard sentence regime – Rolled-up charges – Interests of justice to fix lower non-parole period for standard sentence offence
Legislation Cited: Crimes Act 1958 (Vic); Children, Youth and Families Act 2005 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Jurj v The Queen [2016] VSCA 57; Worboyes v The Queen [2021] VSCA 169; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; R v Wright [1998] VSCA 84; Director of Public Prosecutions v Lawrence [2004] VSCA 154; DPP v Anderson [2013] VSCA 45; R v Verdins [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR 571; Kellway v The King [2023] VSCA 109; DPP v Drake [2019] VSCA 293; Gosland and McDonald v The Queen [2013] VSCA 269; R v Gilder-Rose [1978] Qd R 61; Roma v The Queen [2021] VSCA 16; DPP v Mokhtari [2020] VSCA 161; Brown v The Queen [2019] VSCA 286; Narang (a pseudonym) v The Queen [2022] VSCA 103; DPP v Conos [2021] VSCA 367; Flynn (a pseudonym) v The Queen [2020] VSCA 173; R v O’Rourke [1997] 1 VR 246
Texts Cited:Fox and Freiberg’s Sentencing: State and Federal Law in Victoria
Sentence: 6 years and 6 months’ imprisonment – Non-parole period of 3 years and 4 months – s 6AAA declaration – 8 years and 7 months’ imprisonment with a non-parole period of 4 years and 4 months’
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Moran | Office of Public Prosecutions |
| For the Accused | Mr G. Casement & Mr L. Dogger | Daniel Taylor Lawyers |
HIS HONOUR:
1Harlow Sherman[1], on the 30th of March 2023 you were arraigned before Judicial Registrar Phillips. You pleaded guilty to the following offences:
(i) One charge of common assault contrary to common law. The maximum penalty for this offence is 5 years’ imprisonment, and this is a rolled-up charge;
(ii) One charge of make threat to kill contrary to s 20 of the Crimes Act 1958 (Vic) (‘Crimes Act’). The maximum penalty for this offence is 10 years’ imprisonment, and this is also a rolled-up charge;
(iii) One charge of false imprisonment contrary to common law. The maximum penalty for this offence is 10 years’ imprisonment;
(iv) One charge of rape contrary to s 38(1) of the Crimes Act. The maximum penalty for rape is 25 years’ imprisonment, and this is a rolled up charge;
(v) One charge of causing injury recklessly contrary to s 18 of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment; and
(vi) Four charges of resisting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment.
[1] A pseudonym.
2Unfortunately, there has been a substantial delay in sentencing you. The delay has been largely caused by the court’s requests for pre-sentence reports and is not attributable to you, your lawyers or the prosecution.
Summary of Offending
3At the time of your offending you were 18 years old. You are now 20. The principal victim of your offending, Charles Wheeler,[2] was 17 at the time.
[2] A pseudonym.
4It is necessary to start with a summary of your offending conduct. This summary is drawn from the Summary of Prosecution Opening dated 28 March 2023, which I note is an agreed document.[3]
[3] Exhibit P1.
5On 24 May 2022, Mr Wheeler came to your house in Frankston, where you lived alone. You had first communicated with Mr Wheeler the day before via the online dating application, Grindr. The conversation moved to the social media platform Snapchat, and the two of you made arrangements to meet up the next day.
6Shortly after 10 pm on the evening of 24 May 2022, you met Mr Wheeler outside his house and walked to your address, which was just down the road. When you arrived at your house, the two of you entered your bedroom, and you shut and locked the door.
7You turned off the bedroom lights, and you and Mr Wheeler lay down on your bed, took off your clothes, and performed consensual oral sex on each other.
8Mr Wheeler lay on his stomach, and you began to massage his back. You were seated on his legs, straddling his back. After about 10 seconds, you crossed his hands behind his back. Mr Wheeler resisted and tried to place his hands back in front of his body, and you forcefully pulled his arms to stop him. He turned around and saw that you were holding a knife; it appeared to Mr Wheeler that you were about to stab him in the back.
9Mr Wheeler began to scream at you to stop, and a struggle ensued. You punched him in the face with the hand that was not holding the knife (Charge 1 – Common law assault – Rolled up).
10Mr Wheeler managed to wrestle the knife away from you and attempted to open the locked bedroom door. You continued to punch him hard in the face, and, as he was paying attention to the door, you grabbed back the knife. You turned the bedroom lights on and demanded that Mr Wheeler get back onto your bed, telling him to ‘get on the bed or I’ll kill you’ (Charge 2 – Make threat to Kill – Rolled up).
11He pleaded for you not to kill him, but nonetheless acceded to your demands and walked over to your bed. Seizing a roll of duct tape from underneath the blankets on the bed, you again threatened Mr Wheeler, stating, ‘I’m going to tie you up so get on the fucking bed or I’ll kill you’ and ‘I won’t kill you, but I will if you don’t get on the fucking bed’ (Charge 2 – Make threat to kill – Rolled up).
12Placing the knife on the floor, you pushed Mr Wheeler down onto the bed, turned him over onto his stomach, and proceeded to bind his hands and ankles together with duct tape. You complained that he was screaming too loudly and turned on loud music from the television to conceal his screams.
13Mr Wheeler begged you to let him go. In response, you told him that he was going to remain in your room for his whole life, and that he would never see his family or friends again (Charge 3 – False imprisonment). You also told him, ‘I’m going to rape you every day’ (Charge 1 – Common law assault – Rolled up).
14At some point, you left the room, returning soon after with a wheelchair. Whilst still holding the knife, you directed Mr Wheeler to sit in the wheelchair and wheeled him through to the kitchen. You seized a second knife – a kitchen knife from the drawers – and held it in front of his face (Uncharged act).
15You then wheeled the wheelchair into the bathroom in which there was a ladder leading up to a manhole in the roof. You cut the duct tape from Mr Wheeler’s ankles and instructed him to climb up the ladder. You told him to ‘hurry up or I’ll slash your ankles’ (Uncharged act). You followed him up the ladder.
16Once inside the roof space, you directed Mr Wheeler to go into the corner and lie against the brick wall. You told him that he had to follow your rules: if he screamed or tried to escape, you would kill him (Charge 2 – Make threat to kill – Rolled up). When Mr Wheeler spoke loudly, you threatened him with the knife, stating, ‘I will slash your fucking throat if you don’t shut the fuck up’. You put the knife to his throat, scraped the knife softly against his face and neck, and pretended to stab his penis and stomach. You told him that this was his ‘final warning’.
17You then smashed Mr Wheeler’s head against the brick wall and punched him (Charge 1 – Common law assault – Rolled up); his hearing went ‘fuzzy’. You told him to climb back down the ladder and you followed him down. Once downstairs, you told Mr Wheeler to run to the corner of the kitchen while you retrieved a pocketknife from a cupboard in your living room. You then again instructed him to ascend through the manhole, and climbed up the ladder behind him, holding pillows and blankets.
18In the roof, you subjected Mr Wheeler to a number of assaults: you punched him in the face and told him to suck your penis; kissed him and bit his lips, causing him to bleed; pulled out his eyelashes; and choked him for approximately 30 seconds (Charge 1 – Common law assault – Rolled up).
19You then grabbed his head, put your penis into his mouth, and pushed his head down onto your penis until he began to vomit (Charge 4 – Rape – Rolled up). You told Mr Wheeler that his nose was ugly and that you were going to have to break it, and you also punched and slapped him multiple further times (Charge 1 – Common law assault – Rolled up).
20You then told Mr Wheeler to return down the ladder to your bedroom. Once in the bedroom, you apologised to Mr Wheeler, telling him that you were sorry and that you would not harm him any further; shortly afterwards, you punched him again, and told him to run to the bathroom (Uncharged).
21In the bathroom, you made Mr Wheeler sit in the corner. He was naked and shaking from cold. You punched him several more times in the face, pulled at his nose piercing (Charge 1 – Common law assault – Rolled up), and said, ‘if you look away, I’m going to stab you’ (Charge 2 – Make threat to kill – Rolled up).
22You then subjected Mr Wheeler to a series of further depraved assaults in the bathroom. You used scissors to cut his chest; Mr Wheeler later recounted that you seemed fascinated by the fact that he didn’t immediately bleed, and said ‘Woah, that is so cool’ (Charge 1 – Common law assault – Rolled up). You also loaded the washing machine and threatened to waterboard him (Uncharged act).
23You then picked up a pair of pliers and told Mr Wheeler that you wanted to remove some of his teeth. You placed the pliers near his mouth and attempted to pull out one of his teeth; he struggled and pushed you away (Charge 1 – Common law assault – Rolled up).
24After instructing Mr Wheeler to sit back in the corner of the room, you again inserted your penis into his mouth. You held his nose whilst forcefully penetrating his mouth; Mr Wheeler couldn’t breathe (Charge 4 – Rape – Rolled up). With your other hand, you pretended to stab him in the face.
25After approximately 40 seconds, you removed your penis from Mr Wheeler’s mouth. You told him that now you would rape him, and that you needed lubricant or else you would ‘tear your penis apart’ (Charge 1 – Common Law Assault – Rolled up).
26You and Mr Wheeler went through to your bedroom, and you told him to put on a pair of grey underwear and red shorts. You held the knife to his neck and said, ‘if it’ – referring to the duct tape around Mr Wheeler’s wrists – ‘comes loose, you tell me; if you don’t, I will slice your fucking throat’ (Uncharged).
27At this stage, the music playing from the television stopped. When you went outside the room to check why it had turned off, Mr Wheeler ripped the duct tape off his wrists, grabbed the knife, which you had left in the room, and closed and locked the bedroom door. He smashed the bedroom window and fell through it into the back patio of your house; you heard the noise and ran outside.
28A scuffle ensued in the back patio area and Mr Wheeler was stabbed in the arm (Charge 5 – Cause injury recklessly). He managed to wrestle back control of the knife; while you punched him in the stomach, he stabbed you in the face and back region, and you sustained incised knife wounds on the cheek and scalp.
29Having stabbed you, Mr Wheeler pushed you over, dropped the knife, and ran back through the house and out of the front door. At approximately 12:30 am on the morning of 25 May 2022, he was recorded on CCTV attending a nearby 7-Eleven Store wearing only underwear and socks. He was bleeding from his face and his left arm. The police were called.
Investigation
30When police arrived a short time later, they observed that Mr Wheeler had duct tape attached to his wrist, was covered in blood, and was shivering from the cold. He was taken to the Alfred Hospital and treated for the following injuries:
(i) A stab wound to his left bicep (3-4 cm in length); and
(ii) A slash wound on his lower back (4-5 cm incised wound).
31These two injuries were inflicted in the course of the conduct constituting Charge 5, causing injury recklessly.
32Meanwhile, police attended at your address and discovered you seriously injured, bleeding heavily from multiple stab wounds to your upper body and head. You were taken to the Alfred Hospital, where you were treated for your injuries.
33While at hospital, you were arrested by police and formally cautioned. You told police that Mr Wheeler was the offender in the incident, and although you gave an account that included many accurate details of the events that had taken place earlier that night, you substantially inverted Mr Wheeler’s role in the incident with yours. You now accept that you lied to the police about what had occurred.
34As a result of the allegations you made in this statement to police, later in the day on 25 May 2022, and shortly after Mr Wheeler was released from hospital, he was interviewed by police in relation to the incident.
35Two days later, on 27 May 2022, Mr Wheeler provided a Visual & Audio Recorded Evidence (‘VARE’) Statement as a complainant. This statement is the basis for much of the opening.
Admissions and Search
36On 25 May 2022, while still in hospital, you spoke to a residential youth care worker, Jane Karam[4], who had been assisting you in living independently. You told Ms Karam a similar story to that which you had provided to police – that Mr Wheeler had offended against you earlier that night. This was not true.
[4] A pseudonym.
37Shortly after 10 am on the morning of 25 May 2022, police executed a search warrant at your house in Frankston. The unit was searched, and police seized a number of items, including:
(i) Two Apple iPhones – one belonging to you and one belonging to Mr Wheeler;
(ii) Two knives;
(iii) One roll of duct tape;
(iv) One pair of pliers;
(v) Six pieces of duct tape; and
(vi) Glass from the smashed bedroom window.
38Police also observed that numerous areas of the unit were stained with blood.
39You were released from hospital on 27 May 2022 and returned home. In the following days you made admissions in relation to this offending to two of your carers.
40First, on 1 June 2022, you were at home with a carer, Ms Sinead Beatty[5]. Police attended your address and requested the passcode to your iPhone. You said to police, ‘I would love to help, but I just can’t remember it [the passcode]’. After police had left, you said to Ms Beatty, ‘I’m fucked’ and, ‘I have to hide my phone, if they get into it, I’m in big trouble Sinead. This is serious, this is serious’. You also told her, ‘I’m just gonna blame this whole thing on my mental health’, and ‘I did something so bad, I need to come clean, it’s really bad. No one should ever do what I did to the boy. I am guilty’.
[5] A pseudonym.
41Secondly, on 3 June 2022, Ms Karam attended at your house to provide you with care and assistance. You said to her, ‘You’re not going to love me anymore … What I told you happened to me, I actually did it to him’.
42Police returned to your home on 8 June 2022, where you and another carer, Mr Roger Mitton[6], were present. You stated that you were still unable to remember the pin code to your mobile, but later that day, you phoned police and ultimately provided the code.
[6] A pseudonym.
43When police examined your phone, they discovered that you had made a number of Google searches, including:
(i) ‘Sex Slave Australia’;
(ii) ‘How to hide a sex slave in basement’;
(iii) ‘Sex slave confinement’;
(iv) ‘How can you make a sex slave not move to hide them’;
(v) ‘How can you imprison a sex slave’;
(vi) ‘Teen porn forced’;
(vii) ‘BDSM slave restrains gay teen’;
(viii) ‘Punched and fucked unconscious’;
(ix) ‘Gag muzzle so you can’t talk’;
(x) ‘Can police log into a missing persons social media’;
(xi) ‘Porn teen captured’;
(xii) ‘How to get on the dark web’;
(xiii) ‘How many missing people are never found in Australia’;
(xiv) ‘Porn bdsm teen boy’;
(xv) ‘Teen slave imprisoned’;
(xvi) ‘Dungeon seduction’; and
(xvii) ‘Electric police proof door’.
Arrest and Further Offending
44On 13 June 2022, you attended Frankston Police Station with another of your carers, Hanna Daleford[7]. Police informed you that you were under arrest, and you were read your rights and cautioned. You became argumentative and attempted to walk away, and police forcibly restrained you and took you to the ground. You resisted by kicking out and spitting at four police officers (Charges 6 to 9 – Resisting emergency worker on duty). You were remanded in custody in an adult jail, where you remain.
[7] A pseudonym.
45You were not interviewed by police.
Objective Gravity
46I commence with a consideration of the objective gravity of your offending.
47Before examining the individual charges, it is necessary to make some general observations. I accept the prosecution submission advanced by Ms Moran for the Director that there was a degree of planning and pre-meditation associated with your offending against Mr Wheeler. First, you had a knife and the duct tape in your bedroom where you took him. I infer that you planned to use both of them.
48Secondly, the internet searches recorded on your phone are very concerning. They also suggest that you had planned to offend against the person you invited back to your house.
49This planning and pre-meditation is an aggravating feature of all of your offending on the night.
Charge 1 – Common Assault
50This crime covers a wide range of conduct.
51Yours is a serious instance of the crime. You committed a number of assaults on the victim as detailed earlier which have been rolled up into one charge. The assaults occurred over a protracted period of time and led to the victim suffering a number of injuries. Fortunately, none of which were particularly serious.
Charge 2 – Make Threat to Kill
52You were armed with a knife during the course of this ordeal and were therefore in a position to carry out your threats. The threats were conditional, leaving Mr Wheeler in fear for his life if he did not comply with your demands. You made several threats which have been rolled up into one charge.
53Your moral culpability for making the threats is high.
Charge 3 – False Imprisonment
54You told Mr Wheeler that he was going to remain in your room for his whole life, and that he would never see his family or friends again. This was after you had restrained him and hit him.
55I also consider this to be a serious example of this offence for which your moral culpability is significant.
Charge 4 – Rape
56Assessing the objective gravity of the offence of rape requires a court to have regard to a number of matters identified by the Court of Appeal in the case of Jurj.[8] Applying that list to your case, I conclude that:
(i) There was a degree of premeditation associated with your offending as evidenced by the duct tape and knife in your room;
(ii) You used a weapon;
(iii) You uttered threats of violence;
(iv) The offending was humiliating and degrading; and
(v) You ignored the victim’s protests.
[8] Jurj v The Queen [2016] VSCA 57, [80].
57Your victim was a vulnerable child aged 17 who, after initially consenting to engaging in oral sex with you in your room, made clear his lack of consent to the further conduct. Despite his protests, you forced him to engage in further sexual activity under threat of violence. By your conduct it would have been clear to him that you were prepared to act on your threats. These are matters of considerable aggravation in respect of this charge. However, you are not to be doubly punished in relation the threats which constitute Charge 2.
58It is further aggravating that the victim was restrained when you penetrated his mouth with your penis and that, on the first such occasion, the penetration caused him to vomit.
59The prolonged nature of your attack on the victim also makes it a particularly grave example of this offence.
60Overall I consider that these were serious instances of the crime of rape for which your moral culpability is high.
Charge 5 – Causing Injury Recklessly
61This charge relates to the stab wound to Mr Wheeler’s arm and the slash wound to his lower back for which he received medical treatment in hospital.
62Mr Wheeler does not appear to have suffered any long term physical harm.
63I consider this to be a medium level example of this offence.
Charges 6, 7, 8 and 9 – Resisting an Emergency Worker on Duty
64The police officers that you resisted were acting lawfully in seeking to restrain you. While spitting is a particularly unpleasant way to resist police, these are low to medium examples of this offence.
Victim Impact
65There were three victim impact statements tendered in this matter, two by Mr Wheeler[9] and one by his mother.[10]
[9] Exhibits P2 (dated 29 August 2022) & P3 (dated 1 June 2023).
[10] Exhibit P4 (dated 1 June 2023).
66Beyond the physical injuries sustained by Mr Wheeler, he describes the enduring emotional and psychological impact of your offending on his day-to-day life. He describes feeling unsafe in his own home, forcing him to move, and is unable to go out at night unless accompanied by large groups. Your offending caused a significant upheaval in the life and trajectory of this young man, encumbering his social, work and school life. Despite your offending, it is pleasing that he remains optimistic and committed to ensuring a happy and normal life for himself.
67Your offending has also had a profound impact on Mr Wheeler’s mother. She eloquently describes in detail the changes she has observed in her son’s demeanour since the offending, including having to drive him everywhere due to his fear of being alone. She has set her own life aside since the offending to ensure she can be there to support her son. She has experienced many emotional breakdowns consequent of observing the trauma her son is experiencing.
68I take into account the impact of your offending on the victims.[11]
[11] Sentencing Act 1991 (Vic), s 5(2)(daa).
Personal Circumstances
69You were born in Orbost and are of mixed Aboriginal and European background. Your mother had a drug addiction and abused alcohol including while pregnant with you. You have since been diagnosed with Foetal Alcohol Syndrome Disorder (FASD).
70You never knew your father and you think he is deceased. Information obtained by Forensicare from Monash Health suggests that your father was your mother’s uncle and that your mother was 46 when pregnant with you.
71Child protection became involved with you when you were very young. At two months of age you were removed from your mother’s care and placed in home-based care while having supervised care with your mother.
72At the age of six months you were placed in the care of adoptive parents, Mr Dan[12] and Ms Fran Sherman[13]. They have cared for you ever since and have been present in court to support you.
[12] A pseudonym.
[13] A pseudonym.
73As a young child you cried profusely and suffered from breathing difficulties.
74Once you commenced school, your problems continued. You damaged school property, fought with other students and would watch the same film repeatedly. Your adoptive parents found it difficult to modify your behaviour.
75You struggled academically and were bullied by other students about your biological mother and for being gay.
76You were asked to leave multiple schools due to your behaviour. After you were expelled when you were 14, you attended a special school for troubled children but were also expelled from that school in year 9 after which you received no further education.
77After school you worked in some labouring jobs.
78At age 15, you decided to leave home as the family atmosphere was, as you described to the Forensicare psychiatric registrar, ‘toxic’.[14]
[14] Forensicare Psychiatric Court Report dated 31 October 2023, [24].
79Once again, child welfare became involved and you were placed into a number of residential care facilities from the age of 16. You told Forensicare psychiatric registrar, Dr Lysenko, that ‘the real trouble started there’.[15] You were assaulted on a number of occasions by other residents and felt uncared for.
[15] Forensicare Psychiatric Court Report dated 31 October 2023, [24].
80Other than an incident when you were 14 or 15 and had a sexual experience with a man you met through the dating application Grindr, you have experienced no sexual abuse.
81You told Dr Lysenko that you developed a sexual interest in Bondage, Discipline, Sadism and Masochism (BDSM) from the age of nine. You also told Dr Lysenko that such sexual interests had ceased during your incarceration.[16] You have never been in an intimate relationship.
[16] Ibid, [31].
82In an interview with Youth Justice, you recognised that you made your parents’ lives hell and put a real strain on their marriage.[17] You said that you were never abused as a child. However, as you grew up you clashed with your adoptive father. These clashes led to physical altercations.
[17] Youth Justice Report dated 6 October 2023, 7.
83You have no history of substance abuse.
84You have a limited criminal history that is confined to appearances in the Children’s Court. The only relevant matter led to you being placed on a Therapeutic Treatment Order (‘TTO’) in November 2021.[18] There is limited information before the Court about the circumstances that led to the making of the TTO or to the services you received while subject to the Order. The Order was cancelled and your involvement with Child Protection ceased in August 2022.[19]
[18] The Children’s Court may make a TTO in respect of a child if satisfied that the child has ‘exhibited sexually abusive behaviours’ and ‘that the order is necessary to ensure the child’s access to, or attendance at, an appropriate therapeutic treatment program’ – see Children, Youth and Families Act 2005, s 248(1).
[19] Youth Justice Report dated 6 October 2023, 8.
Mental Health
85You have had problems with your mental health since early childhood. You have been diagnosed with borderline personality disorder (‘BPD’), anxiety, post-traumatic stress disorder, social communication disorder, dyspraxia and attention deficit hyperactivity disorder.[20]
[20] Forensicare Psychiatric Court Report dated 31 October 2023, [38].
86You were admitted to psychiatric units on multiple occasions prompted by anger, problem behaviours and expressions of suicidality. You were under the care of a Child and Adolescent Psychiatrist, Dr Basu, from the age of seven and were first admitted to the Austin Hospital Eagle Unit when you were 11. You were treated by the Latrobe/Bairnsdale Child and Adolescent Mental Health Service in 2010, 2014 and 2016.
87You received Dialectical Behaviour Therapy to aid in the management of your BPD however you report this did not assist you. Your adoptive mother drove twice a week from Orbost to Melbourne to attend this treatment with you.
88You reported to Dr Lysenko that you had ceased taking your prescribed mental health medications in the lead up to the index offending. Dr Lysenko also reports a history of disengagement from mental health services for a period following your 18th birthday (in February 2022).[21]
[21] Ibid, [44]-[45].
89In 2014 your Full Scale Intelligence Quotient was assessed as 82, putting you in the low average range but above the range associated with intellectual disability.[22]
[22] Youth Justice Report dated 6 October 2023, 10.
Matters in Mitigation
Plea of Guilty
90The community has, by your guilty plea, been spared the time and cost of a trial. Because of your plea, witnesses, and the family and friends of Mr Wheeler, have been spared what would have been a traumatic trial for all concerned.
91While your case was transferred to this Court as a not guilty plea, and is therefore not to be considered a guilty plea at the earliest opportunity, I note that you did not have a contested committal and Mr Wheeler was not cross examined.
92You first indicated a desire to plead guilty on 23 February 2023 and you pleaded guilty when you were arraigned on 30 March 2023.
93You are entitled to a significant discount for the utilitarian benefit of your guilty plea coming as it did at a time when the Court’s lists remained burdened by the pandemic-caused backlog.[23]
[23] Worboyes v The Queen [2021] VSCA 169.
Youth
94Your youth is also a significant consideration in this sentencing exercise. You were 18 at the time of the offending. You are now 20. You have your entire adult life ahead of you.
95In the case of R v Mills[24], the Victorian Court of Appeal endorsed several general propositions about sentencing youthful offenders. Two have particular application in your case:
(i) First, that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises; and
(ii) Secondly, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment and incarceration in an adult prison may in fact lead to further offending.[25]
[24] [1998] 4 VR 235 (‘Mills’).
[25] Mills (n 23) 241.
96In the same year that Mills was decided, the Court of Appeal also acknowledged that the propositions in that case, while applied frequently, are not of universal or automatic application;[26] in some cases, factors such as youth and rehabilitation are to take a ‘back seat’ to other sentencing considerations.[27] In particular, youth must be given less weight in the sentencing synthesis for serious offences.[28]
[26] Azzopardi v The Queen [2011] VSCA 372, [38] (‘Azzopardi’); citing R v Wright [1998] VSCA 84, [6].
[27] Ibid.
[28] Director of Public Prosecutions v Lawrence [2004] VSCA 154, [22].
97In the case of Azzopardi, Redlich JA summarised the effect of the applicable authorities in this regard:
where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished[29]
[29] Azzopardi (n 25) [44] (citations omitted).
98In DPP v Anderson,[30] the Court of Appeal stated that it is a ‘cardinal principle of sentencing law that, when a young offender is to be sentenced, the sentencing disposition should be tailored — so far as possible consistently with other applicable sentencing principles — to promote the offender’s rehabilitation’.[31]
[30] [2013] VSCA 45 (‘Anderson’).
[31] Ibid, [49].
99Yours is an example of a case where the seriousness of the offending means that the weight to be attached to your youth is reduced. The need for general and specific deterrence, denunciation and community protection are such that this must be so. However, I do not consider that your rehabilitation prospects are so poor that youth is to be disregarded. On the contrary, I have taken into account those prospects, which I discuss below, in setting your non-parole period.
Verdins
100Your counsel submitted that limbs 3-6 of the Verdins[32] principles are enlivened in your case.[33] It was argued on your behalf that:
(i) You are not an ‘appropriate vehicle’ for the full measure of specific and general deterrence;
(ii) Imprisonment will weigh more heavily on you than a person in normal health; and
(iii) There is a serious risk that imprisonment will have a significantly adverse effect on your mental health.
[32] R v Verdins [2007] VSCA 102 (‘Verdins’).
[33] Ibid, [57].
101While these were not matters that Dr Lysenko explored in his report and nor are they covered in any detail in the Youth Justice report, I am prepared to accept that deterrence should be modified in your case having regard to the range of serious mental health conditions from which you suffer. I also accept that limb 5 of Verdins is relevant as the time you spend in custody will be more burdensome than would be the case for a person who does not suffer from poor mental health. I have taken both of these matters into account in mitigation of sentence.
102However, the evidence before the Court does not enable me to conclude that there is a serious risk of the custodial environment adversely affecting your mental health.
Bugmy
103Your counsel also submitted that your background ‘should apply to reduce your moral culpability’.[34] Reliance is placed in this regard on the ‘general limb’ of the case of Bugmy.[35] It was not submitted that the evidence establishes a causal link between your childhood deprivation and your offending so as to enliven the ‘specific limb’ of Bugmy.
[34] Defence Outline of Matters in Mitigation dated 30 July 2023, [43]-[44].
[35] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
104Turning to the evidence, Dr Lysenko expresses the opinion that you have had a ‘history of extreme and significant developmental problems that date back to [your] gestation including in-utero exposure to alcohol and illicit substances and poor care in [your] infancy’.[36] A particular concern in this regard is the diagnosis of FASD. I accept that this condition will have a life-long effect on you which will not diminish over time.
[36] Forensicare Psychiatric Court Report dated 31 October 2023, [80].
105Your childhood deprivation is not confined to this very early experience. You experienced abuse and bullying at the hands of your peers at school and were sexually abused by a man when you were 14. You felt uncared for when placed in out of home care and were subject to further abuse by residents in residential care settings.
106Dr Lysenko notes that despite ‘being adopted to a stable and loving home’, you displayed a range of problem behaviours from early childhood that escalated over time as discussed earlier in these reasons. There is no doubt that your adoptive parents sought to offer you love and care in what must have been very trying circumstances. As noted earlier, Mr and Ms Sherman have been in court to support you throughout the various hearings of your case. I allowed Ms Sherman to sit near you when you were emotionally affected by the reading aloud by the prosecutor of the prosecution summary.
107I accept that you have established that you had a difficult childhood during which you experienced deprivation despite the best efforts of your adoptive parents.
108However, a deprived childhood ‘does not necessarily result in a reduction in moral culpability for offending as an adult in accordance with the general approach described in Bugmy’.[37]
[37] Kellway v The King [2023] VSCA 109, [94].
109A court’s assessment of the impact of childhood deprivation in the sentencing process is ‘inherently evaluative’. Much will depend on the nature of the offending and what the evidence demonstrates about the offender’s capacity to have exercised rational thought, their degree of impulse control and ability to exercise moral judgment at the time of the relevant conduct. There is little by way of expert evidence before the Court about such matters.
110Further, as the High Court explained in Bugmy, an inability on the part of an offender to control impulse ‘may increase the importance of protecting the community from the offender’.[38]
[38] Bugmy (n 34) [44].
111On balance, I accept that your subjective culpability for the offending in which you engaged ‘cannot be equated with that of a person who committed the same offence[s] but had the advantage of a normal, stable and regular home environment during his or her childhood years’. In that sense, your childhood deprivation ‘constitute[s] an important mitigating circumstance’ in the determination of your sentence.[39] I have moderated the need for deterrence both specific and general as a result.
[39] DPP v Drake [2019] VSCA 293, [32].
Remorse
112Although you initially lied about the circumstances of your offending to both police and one of your support workers, I accept your counsel’s submission that this was a product of your youth and a panicked attempt to avoid responsibility. Shortly after this occurred, you accepted responsibility and this was followed by your eventual plea of guilty.
113On the evidence before the court, there is a question about your insight into your offending. Dr Lysenko reports that you told him that you have no excuse for your offending and that you recoiled in disgust when he provided you with excerpts from Mr Wheeler’s account. While you acknowledged the seriousness of your offending in terms of its consequences for you, your insight into the effect on Mr Wheeler appears to be limited. I accept that this is a function of your mental health conditions.
114I therefore assess your level of genuine remorse to be limited.
Prospects of Rehabilitation
115Your counsel submitted that you have good prospects of rehabilitation. I requested a pre-sentence report from Forensicare to assist me in evaluating this submission. I also sought expert advice on the risks you pose and the treatment options to manage any such risks.
116Dr Lysenko administered a number or risk assessment tests. The results of the tests administered by Dr Lysenko are:
(i) On the Static-99 tool which identifies historical factors that have been empirically shown to be associated with an increased risk of sexual recidivism, you were assessed as being ‘at considerably higher risk of committing a sexual offence than the average person who has sexually offended’;[40]
(ii) On the Risk of Sexual Violence Protocol (‘RSVP’), which is a structured professional judgment tool which is used to assess an individual’s propensity to engage in further sexual violence, your overall risk of future sexual violence was rated as high. The factors that informed this assessment are relative social isolation, non-adherence to prescribed mental health medications, disengagement from mental health support, non-engagement with offence-specific interventions, disengagement from vocational activities, using sex as coping and problems with emotional regulation. These were characterised by Dr Lysenko as significant factors’ in your offending. Dr Lysenko opines that ‘a future scenario where a combination of these factors recurs would be the most likely to precipitate further sexual offending’. They are therefore ‘key targets for intervention’;[41]
(iii) On the HCR-20 tool concerning your risk of future violence generally, although you score highly, your overall risk of non-violent sexual offending was rated as moderate. A significant factor in this regard was the lack of recent ideation or intent and that you had not behaved violently in the 12 months before you were assessed.[42]
[40] Forensicare Psychiatric Court Report dated 31 October 2023, [65]-[66].
[41] Forensicare Psychiatric Court Report dated 31 October 2023, [73].
[42] Ibid, [78].
117Dr Lysenko opines that your risk profile as revealed by these tests ‘is offset by the recommendations detailed in the final paragraphs of [his] report’.[43] Those recommendations for future care, support and treatment are outlined in paragraphs [86]-[91] of the report and I direct that a copy of Dr Lysenko’s report together with these reasons be provided to Corrections to inform their oversight of your time in custody.
[43] Ibid, [85].
118If Dr Lysenko’s recommendations are followed and you engage appropriately with the supports you receive, I consider your rehabilitation prospects to be reasonable. I make this assessment in light of the very serious offending before the Court, your limited remorse, your lack of prior offending of any note, the ongoing support of your adoptive parents and the salutary effect of your time in custody.
Youth Justice
119You have only just turned 20 and are therefore a ‘young offender’ for the purposes of the Sentencing Act 1991 (Vic) (‘Sentencing Act’). The court has a discretion to make a youth justice centre order in relation to you. The exercise of that discretion is to be informed by a pre-sentence report obtained under s 32(1). The court may only make such an order if:
(i) It has received such a report; and
(ii) It believes there are reasonable prospects for the rehabilitation of the young offender; or
(iii) It believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
120The maximum period during which you may be detained under such an order is four years.[44]
[44] Sentencing Act 1991 (Vic), s 32(3).
121It is well established that ‘a Youth Justice Centre Order is an inherently less onerous sentence than a sentence [of] imprisonment to be served in an adult prison’.[45]
[45] Gosland and McDonald v The Queen [2013] VSCA 269, [30].
122I note that you have been held on remand in adult custody since your arrest on 13 June 2022. Your time in custody has been affected by lockdowns and other restrictions imposed due to Covid-19. You are a small and youthful looking young man. I accept and have taken into account how difficult the time in custody must have been for you.
123Your counsel submitted in written submissions dated 30 July 2023 that a Youth Justice Centre Order should be made.[46] The Court was asked to request a pre-sentence report for the purposes of informing itself in relation to the threshold issues identified in s 32(1) of the Sentencing Act.
[46] Defence Outline of Matters in Mitigation dated 30 July 2023, [86].
124I acceded to that request and ordered a report which was duly provided to the Court.[47]
[47] Youth Justice Report dated 6 October 2023.
A Disputed Youth Justice Report
125The sources of information used by Mr Shah, the author of the Youth Justice Report, included four interviews with you between 22 August 2023 and 7 September 2023; and a number of consultations with Youth Justice workers and other professionals who have had responsibility for your care since 2019.[48]
[48] A full list is included in the Youth Justice Report dated 6 October, 1-2.
126The Youth Justice Report is very detailed and contains:
(i) A discussion of the circumstances of the offences (pp 3-5);
(ii) Your involvement in the justice system (pp 5-6);
(iii) Family circumstances (pp 6-9);
(iv) Mental health, education and employment (pp 9-11); and
(v) Current situation (pp 11-13).
127The author concludes that you are unsuitable for detention in a Youth Justice Centre as:
(i) There are not reasonable prospects for your rehabilitation; and
(ii) You are not particularly impressionable, immature and likely to be subject to undesirable influences in adult prison.[49]
[49] Youth Justice Report dated 6 October 2023, 14-15.
128The Report was the subject of a challenge on your behalf pursuant to s 8D of the Sentencing Act.[50] The section provides:
(1) The prosecution or the defence may file with the court a notice of intention to dispute the whole or any part of a pre-sentence report.
(2) If a notice is filed under subsection (1) before sentencing is to take place, the court must not take the report or the part in dispute (as the case requires) into consideration when determining sentence unless the party that filed the notice has been given the opportunity—
(a) to lead evidence on the disputed matters; and
(b) to cross-examine the author of the report on its contents.
[50] Notice of Intention to Dispute Pre-Sentence Report dated 10 November 2023 (‘Notice’).
129The Notice states that you intend to dispute certain parts of the Youth Justice Report including parts that:
(i) describe comments made to the authors about the offending before the court;
(ii) summarise incidents alleged to have occurred while in residential care; and
(iii) summarise incidents alleged to have occurred while on remand.
130The Notice also states that you want to challenge the conclusions reached by the authors.
131On 21 February 2023, the author of the Report, Mr Adrees Shah was cross-examined by your counsel as part of the dispute.
132Mr Shah explained how he compiled the Youth Justice Report. He said that his superiors at Youth Justice had input and all agreed with the conclusions. He said that, unusually in his experience, a psychologist (Dr Russell) was consulted.
133Mr Shah said that the report is based on four lengthy and detailed interviews he conducted with you as well as a consideration of a number of reports and discussions with other people including your adoptive mother, Ms Sherman. You had a support worker with you during the first interview. There was no support worker present for the remaining interviews.
134Mr Shah explained that the parts of the report concerned with the offending were sourced from the final of the four interviews on 7 September 2023. Mr Shah was asked about the reference on page 4 of the report to you becoming ‘defensive and aggressive’ when asked about the offending. The report quotes you as saying ‘I don’t see the point in going through this (the offending)’. Mr Shah was asked by your counsel Mr Casement whether he told you that the interview could be re-scheduled to another time. Mr Shah said he could not recollect doing that. He accepted there would have been no problem doing that.
135Mr Casement asked Mr Shah if he returned to the topic of the support worker when you became aggressive. He was asked if he said to you that you might want to get some advice or get the support worker back to help you. Mr Shah’s response was that he did not and he added that that was partly because of the sensitive nature of the conversations.
136Based on the cross examination, I make the following factual findings in my resolution of the dispute:
(i) You only had a support worker present during the first of the four interviews conducted with you by Mr Shah on 22 August 2023;
(ii) Mr Shah considered, based on that interview, that you had a rapport with that support worker;
(iii) There was no support worker present at any of the three subsequent interviews;
(iv) After the first interview, Mr Shah spoke to you and put to you that given the topics that would be discussed (including the offending) in the later interviews, there was the potential for disclosure by the support worker to other people in the prison;
(v) Mr Shah asked you whether, in light of this, you could go on without the support worker and you agreed to do that; and
(vi) Mr Shah made clear to you that it was up to you whether you had a support worker present at the later interviews.
137It is to be recalled that you were, at the time of these interviews, and to the present time, a deeply troubled young man with a range of serious psychiatric conditions. Mr Shah said that, in his eight years of experience of working with young offenders, he had never experienced an offender with your range of conditions.
138In these circumstances, I am concerned that you were interviewed three times without a support worker being present. That concern is compounded by Mr Shah’s role in what I accept was a joint decision for the three interviews to proceed without a support worker being present. This joint decision must be understood in the context of the power imbalance between you and Mr Shah. I note that none of the interviews was recorded.
Consideration
139A court is not required to accept or act on any part of a pre-sentence report especially where, as is the case here, the report is the subject of a concerted challenge by counsel for the offender.[51] Such a report is to be considered by the court along with all other relevant matters.
[51] Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [2.190].
140I consider that there is a real question of fairness to you about the court relying on any part of the Youth Justice Report as a matter of aggravation on sentence and I do not do so. You are entitled to be sentenced on the agreed factual basis set out in the Summary of Prosecution Opening.
141There is another concern I have about the Report. The Youth Justice Report describes allegations of you engaging in conduct of a criminal nature for which you have not been charged let alone convicted. There is no evidence before the court of there even being an investigation into the alleged conduct. This is significant as you are to be sentenced on the agreed basis that you have very little by way of criminal history and what you have is confined to the Children’s Court. Examples of the conduct described in the Report include:
(i)Threatening to kill your adoptive mother in January 2019;[52]
(ii)Decapitating a bird while in residential care;[53]
(iii)Assaulting custodial staff members in June 2022 and September 2023;[54]
(iv)Threatening on the phone to rape your mother in September 2023;[55] and
(v)Threatening to kill court personnel and members of the victim’s family.[56]
[52] Youth Justice Report dated 6 October 2023, 7.
[53] Ibid, 8.
[54] Ibid, 12.
[55] Ibid, 13.
[56] Ibid.
142I note that these last allegations involving threats to kill are based on information provided to unnamed custodial officers by an ‘unknown source familiar to Mr Sherman’.[57]
[57] Youth Justice Report dated 6 October 2023, 13.
143The learned authors of the leading text on sentencing law refer to a decision of the Queensland Court of Criminal Appeal concerning matters that should not be addressed in a pre-sentence report.[58] The text refers to a Queensland case decided in that State’s Court of Appeal.
[58] Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [2.215].
144In R v Gilder-Rose,[59] the sentencing Judge had requested a pre-sentence report. The report noted that the offender had no prior convictions but went on to discuss ‘three occasions on which information obtained by the probation officer suggested the [offender] had been charged with criminal offences and discharged without conviction; and on another occasion on which an award of compensation was made against him… in respect of an indecent assault’.
[59] [1978] Qd R 61 (‘Gilder-Rose’).
145Over the objection of defence counsel, the sentencing judge took the information into account reasoning that ‘the more background information made available to the court the more likely it is that the appropriate sentence would be (found)’.
146The Court of Appeal held that the sentencing judge erred in adopting this approach and should have disregarded the impugned passages of the report. The Court also considered that no reference should be made in such a report ‘to any alleged conduct of a criminal nature attributed to the person the subject of the report, unless he had been convicted of an offence constituted by that conduct’.[60] Any such reference would be ‘improper’ in the opinion of the Court.
[60] Ibid, 62-3; the case is noted at (1978) 52 ALJ 95, 98.
147I have adopted a similar approach in this case.
148Ultimately, having considered all relevant aspects of the case, I have concluded that the offending is too serious for a custodial disposition of four years or less. Therefore, youth justice is irrelevant to the disposition. It follows that the Youth Justice Report, which was sought by the Court to inform its consideration of the matters in s 32 of the Sentencing Act is of minimal significance. This is especially so where the Forensicare report has dealt thoroughly with a wide range of matters personal to you.
Current Sentencing Practices
149The Court was not referred to any comparable cases. In the course of the plea hearing, counsel were asked to make submissions about two cases where offenders had been sentenced for rape and other offences which occurred as part of an ongoing ordeal experienced by the victim.[61] Mr Casement for you submitted that such cases were of minimal assistance as they involved older offenders and the offending occurred in very different circumstances to your case. I have accepted that submission.
[61] Roma v The Queen [2021] VSCA 16; DPP v Mokhtari [2020] VSCA 161.
Consideration
150Section 5 of the Sentencing Act provides that the only purposes for which you may be sentenced are:
(i) To punish you in a manner and to an extent which is just in all the circumstances;
(ii) To deter you or others from committing similar offences in the future;
(iii) To facilitate rehabilitation;
(iv) To manifest the denunciation of your conduct;
(v) To protect the community; or
(vi) A combination of two or more of these purposes.
151In your case, I consider just punishment, rehabilitation, and community protection to assume particular weight.
152For the reasons outlined earlier, general and specific deterrence, as well as denunciation, are markedly diminished in light of your complex psychiatric and psychological profile. On the other hand community protection and the promotion of your rehabilitation are of particular importance.
153The principle of parsimony is also significant. Having determined that a custodial sentence is the only appropriate outcome in your case, the court must ensure that the duration for which you are imprisoned is no longer than is necessary to achieve the purposes for which the sentence is imposed.[62]
[62] Sentencing Act 1991 (Vic), s 5(3).
Standard Sentence Regime
154The crime of rape is a category 1 offence. Therefore, I am required to impose a sentence of imprisonment on you.[63]
[63] Ibid, s 5(2G).
155Rape is also a ‘standard sentence offence’. The ‘standard sentence’, which is 10 years’ imprisonment, is the appropriate sentence for the middle range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence.[64] This is but one of a number of considerations to which the court must have regard along with the maximum penalty of 25 years and all other relevant considerations.[65]
[64] Ibid, s 5A(1)(b).
[65] Brown v The Queen [2019] VSCA 286.
156In your case I have imposed a sentence on Charge 4 which is less than the standard sentence having regard to my assessment of the objective seriousness of your offending, the victim impact, your plea of guilty, your youth, childhood deprivation and mental illness, the likely effect on you of incarceration, and your expressions of remorse.
157Further, s 11A of the Sentencing Act requires the court to fix a non-parole period of at least 60% of the total effective sentence unless the court considers it to be in the interests of justice not to do so.
158As both counsel noted during submissions, this is a difficult sentencing exercise. The court must balance the objectively serious nature of the offending with your youth and very troubled past. More than usually, the sentencing considerations in this case pull in opposite directions.
Rolled Up Charges
159Charges 1, 2 and 4 are rolled up charges. They each allege more than one instance of the relevant offence. In relation to Charge 1, there are 11 assaults; Charge 2 consists of 4 threats to kill; and there are 2 rapes that make up Charge 4.
160In sentencing you in respect of these three charges, the court considers each charge as a single offence with a single maximum. However, the sentence I impose must acknowledge that there are several instances of each offence that comprise the rolled-up charge.
161Other things being equal, a rolled-up charge for a given offence is more serious than a single charge of that offence.[66] The authorities establish that ‘a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence’.[67]
[66] Narang (a pseudonym) v The Queen [2022] VSCA 103, [50].
[67] DPP v Conos [2021] VSCA 367, [75].
Totality
162The principle of totality requires the court to impose a sentence in relation to each of the charges and then make orders in respect of cumulation and concurrency so that the total effective sentence appropriately reflects your overall criminality.
163The court must fix an appropriate sentence for each offence before considering questions of cumulation, concurrence and totality and ‘the mitigating effects of youth must be considered at all stages’.[68]
[68]Azzopardi (n 25) [54].
164The offences you committed at your house were part of one, albeit protracted, incident lasting approximately two hours.
165Further, the offending giving rise to Charges 6 to 9 all occurred during a relatively brief period of time and can be appropriately characterised as a ‘single transaction’.[69]
[69] Flynn (a pseudonym) v The Queen [2020] VSCA 173, [108]- [130].
166In such a case, the Court of Appeal has explained that:
a sentencing judge should always strive to impose the sentence that is appropriate to each charge in a multi-charge indictment. The judge should deal with the principle of totality by making appropriate orders for cumulation. In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim[70]
[70] Ibid, [130].
167As the Court of Appeal said in R v O’Rourke[71]:
[T]here are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency[72]
[71] [1997] 1 VR 246.
[72] Ibid, 253.
Orders
168On Charge 1, the rolled-up charge of common assault contrary to common law, you are convicted and sentenced to 15 months’ imprisonment.
169On Charge 2, the rolled-up charge of making threats to kill, you are convicted and sentenced to 2 years and six months’ imprisonment.
170On Charge 3, false imprisonment, you are convicted and sentenced to 18 months’ imprisonment.
171On Charge 4, the rolled-up charge of rape, you are convicted and sentenced to 5 years’ imprisonment.
172On Charge 5, causing injury recklessly, you are convicted and sentenced to 9 months’ imprisonment.
173On each of the Charges 6, 7, 8 and 9 of resisting an emergency worker on duty, you are convicted and sentenced to 6 months’ imprisonment.
174The sentence imposed in respect of Charge 4 is the base sentence.
175I order that:
(i) 3 months of the sentence imposed in respect of Charge 1;
(ii) 5 months of the sentence in respect of Charge 2;
(iii) 4 months of the sentence imposed in respect of Charge 3;
(iv) 2 months of the sentence imposed in respect of Charge 5; and
(v) 1 month of each of the sentences imposed in respect of Charges 6-9
be served cumulatively on the base sentence and on each other.
176The total effective sentence is therefore 6 years and 6 months.
177I order that the minimum period you must serve before you are eligible for parole is 3 years and 4 months. This is less than 60% of the total effective sentence. Pursuant to s 11A(4) of the Sentencing Act, I have concluded that it is in the interests of justice to fix a non-parole period of just over 50% of the total effective sentence. This will ensure that you have a lengthy period of supervision after your release, if you are released on parole. I have taken into account your youth and all of the evidence before the Court in reaching this conclusion.
178I declare that the 634 days you have served on remand be reckoned pursuant to s 18 of the Sentencing Act, as time already served under the sentence imposed today and that this be noted in the records of the Court.
179As you have been found guilty of a Schedule 1 offence for the purposes of the Sex Offenders Registration Act 2004 (Vic), you are subject to the mandatory registration and reporting obligations under that Act. The reporting period is 15 years.
180Pursuant to s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have imposed a sentence of 8 years and 7 months’ imprisonment with a non-parole period of 4 years and 4 months.
181Finally, I make the forfeiture order sought by the prosecution, noting that it is not opposed.
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