Director of Public Prosecutions v Sladek
[2023] VCC 435
•16 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00157
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD SLADEK |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2023 | |
DATE OF SENTENCE: | 16 March 2023 | |
CASE MAY BE CITED AS: | DPP v SLADEK | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 435 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Rape – Sentence following guilty verdict at trial – Delay – Covid-19 pandemic – Strong prospects of rehabilitation.
Legislation Cited: ss 5, 5B(2)(a), 18 Sentencing Act 1991 (Vic).
Cases Cited:Brown v The Queen [2019] VSCA 286; Cheung v R [2001] HCA 67; DPP v Mokhtari [2020] VSCA 161; Okutgen v The Queen (1982) 8 A Crim R 262; R v Cockerell [2001] VSCA 239 ; R v RLP [2009] VSCA 271.
Sentence:Five years and four months’ imprisonment with a non-parole period of three years and one month imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | The Office of Public Prosecutions |
| For the Accused | Mr C. Hooper | Ann Valos Criminal Law |
HER HONOUR:
1Richard Sladek, following a seven-day trial on 14 February of this year a jury found you guilty of one charge of rape committed on 28 October 2018. The jury found you not guilty of one charge of attempted rape alleged to have occurred during the same incident. The maximum penalty for rape is 25 years' imprisonment. The standard sentence for rape is imprisonment for ten years’ imprisonment. As rape is a Category 1 offence a sentence of imprisonment is mandatory.
Circumstances of the offending
2By way of background, at the time of the offending you were 60 years of age and living at 50 Oak Park Drive, Harkness. The victim, Sarah Montgomery[1], was aged 32. Prior to the offending you were acquaintances. Ms Montgomery’s evidence was that she had met you around three or four times before the night in question, mainly in the context of visiting a friend of hers, who used to live at your address. In your interview with police you estimate having previously met her about half a dozen times.
[1] A pseudonym.
3On the evening of Sunday 28 October 2018, Ms Montgomery was drinking at home and had an argument with her partner. The argument related to her partner allegedly sleeping with your daughter. Ms Montgomery decided to go see her friend, who had been living with you. She knocked on the door, you opened it and told her that her friend no longer lived there. She asked you for a cigarette. You closed the front door, opened the garage roller door to let her in. Ms Montgomery entered the garage and you gave her a cigarette.
4As to what precisely happened in the garage it was submitted by your Counsel that the Court could not make any confident findings in respect of this period and that such factual matters were not implicit or subsumed by the jury verdict. Ms Montgomery alleges force and violence being used in the garage and of being forcibly carried to your bedroom. These factors would constitute aggravating circumstances and before proceeding on this basis the Court would need to be satisfied beyond reasonable doubt of such matters.
5Your Counsel submitted that the jury verdict does not assist the Court to determine the circumstances in which the offending commenced or ended. The prosecution did not press the Court to make positive or adverse findings in respect of the surrounding circumstances, but to sentence you on the basis of what occurred in the bedroom once Ms Montgomery was turned on her stomach, leading to the anal penetration the subject of the charge.
6After trial, the primary constraint upon the power and duty of a sentencing judge is that the view of the facts adopted for the purposes of sentencing must be consistent with the verdict of the jury. A further constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.[2] Your case does represent a difficult sentencing exercise.
[2] Cheung v R [2001] HCA 67.
7During the trial the jury obviously heard evidence as to the alleged surrounding circumstances of the offending. Such evidence, including as to what allegedly occurred in the garage, or in the bathroom, may or may not have been significant to some or all of the jurors in their process of reasoning leading to conviction on the one charge. It is entirely unknown and these issues, which would otherwise be relevant on sentencing to an assessment of your culpability in particular, I accept are largely unresolved by the jury verdict.
8On the evidence as it was presented during trial I am unable to reach a confident conclusion as to how events unfolded in the garage and, in particular, I am not satisfied beyond reasonable doubt that you dragged or carried Ms Montgomery to the bedroom. I have had regard to her evidence and also the evidence of your daughter in this regard which I consider does cast some doubt on Ms Montgomery’s version of events. I sentence you on the basis of what occurred in the bedroom. The jury verdict indicates that your version of events as to this sexual activity being consensual was rejected. I sentence you on the basis that you anally raped Ms Montgomery in circumstances where she was not consenting and you did not hold a reasonable belief that she was consenting.
9Relevantly, Ms Montgomery gave the following evidence:
I'm going to go back now to where you say he then flipped you over. So what position were you in then?---I was face down on his mattress headed towards the en suite.
So your head was facing down - away from the bed face down?---Yeah.
And you were just showing there that - under your chin area. Where was that?---That was stuck on the edge of the mattress. I couldn't breathe. I thought I was going to die.
Where was Richard's hand at that point?---Um, on the back of my neck.
And when his hand was at the back of your neck and the other side of your neck was on the side of the bed, what was happening then with you?---He was trying to penetrate my bottom and he wasn't penetrating my bottom, and I just bucked like a bull and tried to get out of there. I couldn't breathe.
And why couldn't you breathe?---He was holding me down on the mattress.
So you mentioned he was trying to put his penis in your bum. I just want to step through what he was actually doing to the best of your memory?
---Putting his penis in my bum, but it was hurting. I was crying and screaming out.
I just want to take you back to he tried to put his penis in your bum. Where did his penis go?---In my bum.
In which part?---In my anus hole. [3]
And you said he put his penis inside your bum or your anal hole?---Yeah.
Was he saying anything around that time?---He was just grunting and, like, real creep line "Grrr" and "Yeah. Baby, yeah, yeah. You want this. You want this".
What action was it doing if any?---Just going - just going in and out of my bum.
Are you able to say about how many times that happened or how long that took?---No. I was too worried about getting out of it and trying to breathe.
As you said you were worried about how you were going to get out of it, were you doing anything yourself at this point?---Um, so, yeah, I was bucking, kicking - like kicking backwards like a worm. I don't know how to describe it, but I was bucking.
You were bucking?---Yeah, like - yeah, my legs and my belly. I was trying to get out from underneath him.[4]
[3] Transcript, 15 February 2023, pages 68-69.
[4] Ibid, pages 73-74.
10Ms Montgomery’s account of the offending is clearly one where she was protesting and struggling.
11On your behalf it was submitted that the medical evidence was equivocal and the Court could not sentence you on the basis that you had caused Ms Montgomery injury. Further, it was submitted that the causing of injury is not a separate element to the rape. At the plea hearing the prosecution did not submit that the Court should make findings as to the deliberate infliction of injuries. Rather, the forensic medical officer's evidence was consistent with the account provided by Ms Montgomery which, in respect of the anal penetration charge, was accepted by the jury. I proceed cautiously in this regard particularly noting that the jury acquitted you on the attempted rape charge.
12Part of the allegation in that respect was that you had forced Ms Montgomery’s legs open and there was evidence from the forensic medical officer that there were fingerprint bruising to the inner thigh. In her evidence Dr Katherine Ramsay qualified her opinions and confirmed she could not say with any degree of certainty how, or when, the injuries she observed occurred. To be clear, while her evidence is in some parts consistent with Ms Montgomery’s account of events, I do not sentence you on the basis that you intentionally inflicted physical injury on her.
13I also accept your Counsel's submission that there is difficulty in making confident findings as to the events that followed the offence. It is expected that such matters would bear upon an assessment of your culpability and the overall circumstances of the offending. I have had regard to the evidence of Ms Montgomery, in particular to the events in the bathroom, also the varying accounts given to Maxine Rover[5] and to the police as to how the incident ended and she left the property.
[5] A pseudonym.
14The prosecution did not invite the Court to make any adverse findings against you in respect of this period and I do not consider that I am able to, that is, to the requisite standard. After the event Ms Montgomery immediately complained to Ms Rover and the police attended that night.
Gravity of the offending
15Mr Sladek, the offence of rape is an inherently serious one as indicated by the maximum penalty. It is an invasion of a victim's bodily integrity without consent.[6] By its verdict the jury has found that you anally penetrated Ms Montgomery in circumstances where she was not consenting and you did not hold a reasonable belief that she was consenting.
[6] DPP v Mokhtari [2020] VSCA 161.
16In assessing the objective gravity of your offending, I take into account that your offending was isolated to the incident in the bedroom for which you were convicted. I accept that it was of relative short duration and I proceed on the basis that there was no planning or premeditation on your behalf for the events to occur. I also accept, as conceded by the prosecution, that you did not use a weapon, act in company or, additionally, humiliate or degrade the victim.
17In my assessment I also take into account that Ms Montgomery was actively protesting at the time. I take into account that on her version of events, and as accepted by the jury, a degree, unknown as it may be, of physical force accompanied the sexual act beyond the force involved in the penetration itself. I also take into account that a condom was not used at the time which placed Ms Montgomery at risk of a sexually transmitted disease or at least she feared this.
18There was some dispute between the parties as to how your offending should be characterised, that is, 'more than midrange' or 'middle to lower midrange'. I accept that your offending does not represent the least serious example for such an offence and nor does it represent the most serious. Attempts to otherwise shoehorn it into a particular category may obscure as opposed to assist in the essential nature of the sentencing task. I take into account all the relevant circumstances of your offending and I consider that your moral culpability was high.
Victim impact
19Mr Montgomery recently provided a victim impact statement. She speaks in that statement of the profound and pervasive effect of your offending on her. She states as follows:
I feel that this has ruined my life. My generally bubbly personality has changed and I am not the same person that I was before this. I always had a bounce in my step, but now it's gone. I live with the constant feeling of shame that I'm dirty. I hate what this has done to my life and how it has affected me even to this day. I've no trust in anyone any more and keep to myself so that no one else can hurt me.
20She also describes how she stopped working and how your offending has affected her social life as she feels overwhelmed at times to see people. I take into account in sentencing you, Mr Sladek, the impact of your offending on Ms Montgomery.
Personal circumstances
21As to your personal circumstances, you were born in June 1958. You were 60 years of age at the time of your offending and you are now 64. You have no prior criminal history and there are no subsequent matters alleged against you. Both your parents are now deceased and I was told that you remain in contact with your three other siblings.
22You left school in Year 9 at the age of 15 to commence working in the railway industry. You remained in that field for three years before commencing work as a concreter with your brother. You then returned to work in the rail industry where you remained for another nine years. You later found employment as a youth worker with the Department of Health and Human Services and you worked in this role from 2001 to 2016. For this period you worked full-time in the Parkville Youth Justice Precinct, working directly with young offenders. You often worked, I was told, additional nightshifts and took on additional responsibilities.
23In the course of your employment you also obtained a number of qualifications, including a Certificate IV in Youth Education and a Certificate I in Adult Education. You ultimately left your job because of the work conditions. You then worked part-time for a period at Vinnies while also taking on responsibilities for your granddaughter. You lost this job as a result of being charged with this sexual offending. You were then unemployed until 2022 when you commenced work in landscaping for a city council.
24You have fathered four children. You have three sons, and a daughter, who gave evidence in your trial. You provided a home for all your children until 1987 when your marriage collapsed. At that time the children resided with their mother while maintaining regular contact with you. At the time of the offending you were providing accommodation to your daughter and her nine year old daughter. Your daughter has lived with you intermittently over the last decade. She has struggled with substance abuse issues for years and you have been a constant support to her and your granddaughter.
25In 2015 to 2016 you took on custody of your granddaughter with the support of your daughter. This involved taking on additional legal and parental responsibilities for her. After you were charged, and to avoid your granddaughter being placed in outer foster care your brother and sister-in-law have taken her in and she now resides with them. In her letter to the court your daughter stated:
My father had custody of my daughter at the time as well until DHHS took her off him, which has devastated him as he adores his granddaughter and loves helping her read and learn while she's growing up.
26At the time of the offending you were involved in your community, including with the local football club and RSL Club.
Factors in mitigation
27A number of factors were relied upon in mitigation on your behalf and advanced by your Counsel, Mr Hooper. As I have already noted, you have no criminal history or subsequent matters and you are otherwise, I accept, of good character. It was submitted that up until the age of 60 you had led a blameless existence, working and making valuable contributions to the community. Your offending was anomalous and out of character. There is no evidence to suggest that you display underlying problematic or misogynistic attitudes towards women.
28I accept and take into account that you are mature man who had reached the age of 60 without any breach of the law, and that you have raised a family and been engaged in constant work. I take into account your previous good character.[7]
[7] Okutgen v The Queen (1982) 8 A Crim R 262.
29The delay in this matter was also relied upon as a significant factor. A period approaching four and a half years, had elapsed since the offending. There is no suggestion that you have contributed to the delay. I accept that the delay in your case is a significant factor. As the higher courts have recognised:[8]
First and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process, but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.
[8] R v Cockerell [2001] VSCA 239, [10].
30I accept that these factors operate in your case and are important. Your case has had a somewhat protracted history. I note that at the outset you were arrested and interviewed on 29 October 2018 but not charged until around April of 2020. I take into account the stress and uncertainty experienced during this period. I also consider the delay is important when assessing your rehabilitation.
31Notwithstanding the challenges, the stress and isolation during this period, in particular as referred to by your daughter in her reference, you have not reoffended and have largely remained engaged in work and with family. You have been on remand since 14 February 2023 and this is your first period in custody. I accept, as it was put on your behalf, that this has been a significant experience and profoundly stressful. Also you initially spent 42 hours in isolation. I accept the submission of your counsel and take into account that while Covid-19 restrictions have eased in custody there is no suggestion that they have been abandoned and the effects of the pandemic for prison appear to be ongoing and somewhat fluid.
32Of course, Mr Sladek, you pursued this matter to trial which means that you do not obtain the mitigatory benefit of a plea of guilty in these proceedings.
Prospects of rehabilitation
33Given your solid and extensive work history and family responsibilities, I accept that you have strong prospects of rehabilitation. I also take into account your lack of prior criminal history and your previous good character.
34A character reference was tendered on your behalf by John Ryan. He has known you for around 22 years and has also worked with you. He considers the charges out of character and speaks well of your work ethic and commitment to family.
Sentencing principles
35The basic purpose for which a court may impose a sentence are: punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I consider specific deterrence and community protection are of little significance to the exercise of my sentencing discretion given your previous good character and my assessment of your prospects of rehabilitation. As I have already referred to, I take into account your mature years and that you are now 64 years of age serving your first term of imprisonment.
36Given the seriousness and nature of this offending, I consider that punishment, denunciation and general deterrence remain primary sentencing considerations.[9] I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have had regard to current sentencing practices for rape and I have only had regard to sentences previously imposed for the offence as a standard offence.
[9] R v RLP [2009] VSCA 271.
37The prosecution referred to one case in this jurisdiction. I can indicate that I have also considered others in both this Court and the Court of Appeal. These cases have been of assistance but in the end each case must be decided on its own individual facts and circumstances.
38The only appropriate sentence in this case, Mr Sladek, is one of immediate imprisonment for a substantial period. I do recognise that the deprivation of liberty and personal autonomy for a period of years is a severe sanction for a first-time offender. As earlier noted, the standard sentencing regime applies to your case and the standard sentence for rape is ten years' imprisonment. The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.
39In considering the impact of standard sentencing on your case I have had regard to the relevant cases and principles.[10] In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing.[11] This requirement, therefore, is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point. It does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and it does not otherwise affect the matters which I may or must take into account in sentencing.
[10] Brown v The Queen [2019] VSCA 286.
[11] See also s5B(2)(a) Sentencing Act 1991 (Vic).
40Accordingly, I have taken the standard sentence for rape into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors in your case. The sentence I am about to impose in respect of your charge is lower than the standard sentence. I have considered all relevant factors in assessing your sentence, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation. I have also, I can indicate, taken into account all the submissions made by both Counsel and additional principles, including the principle of proportionality.
41I have determined, Mr Sladek, that the following sentence is just and appropriate.
Sentence
42On the charge of rape you are convicted and sentenced to a period of five years and four months' imprisonment. In terms of setting the non‑parole period I have taken into account all relevant matters and, in particular, the mitigatory factors in your case, particularly your mature age, previous good character, the delay in the case and my assessment as to your prospects of rehabilitation. As the charge is a standard sentence offence I must fix a non‑parole period of at least 60 per cent of the sentence I impose unless I consider that it is in the interests of justice not to do so. In your case I consider that it is in the interests of justice to fix a non‑parole period of three years and one month and I do so in your case.
43Pursuant to s18 of the Sentencing Act 1991 (Vic) I declare that you have served a total of 23 days as pre-sentence detention.
44I note no application was made by the prosecutor for a discretionary order under the Sex Offenders Registration Act2004 (Vic).
45Is there anything else?
46MS GUESDON: No, Your Honour.[12]
[12] Following sentence, submissions were made on behalf of Mr Sladek for an interim suppression order. This was granted and ceased on 23 March 2023 after final hearing of the matter.
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