Director of Public Prosecutions v Star
[2019] VCC 1822
•8 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01411
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE STAR |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15–19, 22-24, 26, 29-30 July; 23 October 2019 | |
DATE OF SENTENCE: | 8 November 2019 | |
CASE MAY BE CITED AS: | DPP v Star | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1822 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Rape – Application to stay the operation of the sentence pursuant to s309(2) Criminal Procedure Act
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – DPP v Toomey [2006] VSCA 90 – Costa [2013] VSCA 5 – De Marchi [1983] 1 VR 619 – Gant [2016] VSC 662 – Martin (a pseudonym) [2019] VSCA 15 – Ash [2010] VSCA 117
Sentence: TES: 4 years imprisonment with a minimum of 2 years to be served before eligible for parole.
Ruling: Application to stay the operation of the sentence pending appeal in the Court of Appeal is refused.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | OPP |
| For the Accused | Mr C. Morgan for trial and plea Mr B. Nibbs for sentence | Clancy Solicitors |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, a pseudonym will be used for the name of the complainant.
[1] Section 4 Judicial Proceedings Reports Act
2 Charlie Star, together with a co-accused, you faced a joint trial on an indictment containing 8 charges of rape. The charges relating to you were charges 1, 6 and 7. On 30 July 2019, a jury found you guilty of charge 6. The jury found you not guilty of charge 1 and were unable to reach a decision on charge 7 and were discharged without verdict. The prosecution later announced a discontinuance of charge 7.
3 The charges relating to your co-accused were charges 2, 3, 4, 5 and 8. The jury found him not guilty of charges 2, 3, 4 and 8. The jury were unable to reach a verdict on charge 5 and were discharged without verdict. The prosecution later announced a discontinuance of charge 5.
4 In order to confirm the basis on which I sentence you on charge 6 in a way that is consistent with the jury's verdicts, including the acquittals, it is necessary to describe the prosecution case, and the defence response to that case. I will do so in as brief terms as possible.
5
It was alleged that you and your co-accused had caused a 17-year-old girl,
Ms Rosalie Anson[2], to follow you behind a large farm shed during the night of an 18th birthday party being held at a farm. You and your co-accused were aged 20 at the time and the two of you had not met Ms Anson before. It was alleged by Ms Anson that before being asked to look at something behind the shed, she willingly kissed your co-accused, but she did not kiss you; she gave evidence that after the three of you moved to the corner of the shed, and your co-accused grabbed her buttocks, she said she did not want to do this anymore. She alleged that despite her saying this repeatedly and asking you both to stop throughout, and also telling you that she had never had sex before, each of you nevertheless commenced the sexual activity with her and continued to do so.
[2] A pseudonym
6 First, she alleged that after you touched her vagina with your fingers (not the subject of a charge), you penetrated her vagina with your penis (charge 1), at the same time as your co-accused penetrated her mouth with his penis (charge 2). The jury acquitted you both on these charges.
7 Ms Anson then alleged that you both turned her around and your co-accused penetrated her anus with his penis (charge 3) and when she screamed, he took his penis out and penetrated her vagina with his penis (charge 4). Your co-accused was acquitted of both of these charges.
8 She alleged that after moving her further down the shed at your suggestion, by your co-accused grabbing her arm and pulling her there, he lay on the ground and you pushed her onto your co-accused. She alleged that you were trying to, and did, penetrate her vagina with your penis (not the subject of a charge) and your co-accused inserted his penis into her mouth (charge 5, on which the jury were undecided). You then penetrated her anus with your penis (charge 6, on which the jury found you guilty). Ms Anson alleged that she screamed, and you took your penis out and again penetrated her vagina with your penis (charge 7 on which the jury were undecided). Ms Anson alleged that after you ejaculated, you left her with the co-accused and while Ms Anson was on her knees, your co-accused penetrated her mouth with his penis (charge 8). He was acquitted of this charge.
9 Your defence was presented to the jury by the playing of your record of interview with police in which you asserted that you had engaged in consensual kissing with Ms Anson and that once the three of you were at the corner of the shed, you were the first of the two men to engage in consensual sexual activity with Ms Anson, by penetrating her mouth with your penis while your co-accused was standing behind her; that when you all moved further down the shed, you engaged in consensual penetration of her vagina with your penis while your co-accused was consensually penetrating her mouth with his penis as he lay on the ground. You asserted that you then accidentally penetrated her anus with your penis and then, when she said, “Ow, Charlie, that hurt”, you re-inserted your penis into her vagina with her consent. You denied that any sexual activity you engaged in with Ms Anson was without her consent, and denied that you had no reasonable belief that she was consenting.
10
By agreement, the records of interview of you and your co-accused were admissible in each other's case. For completeness then, I note that in his interview, your co-accused admits he engaged in consensual kissing with
Ms Anson, but once you were all at the corner of the shed, he denied that he committed any of the sexual acts the subject of his charges (2, 3, 4, 5, and 8) and asserted that the only sexual activity he engaged in was that he penetrated Ms Anson's vagina with his penis to a slight extent only after you had left, and that was with Ms Anson's consent. He denied any other penetration on the basis that he was unable to maintain an erection. He denied that any sexual activity he engaged in with Ms Anson was without her consent, and denied that he had no reasonable belief that she was consenting.
11 On the day of your plea, your counsel submitted that considering all the verdicts of the jury, it was clear that they had considered the accounts in the records of interview to be credible, and as directed, had found you and your co-accused not guilty of charges where that was their view. He further submitted that the jury had acted on your version in your interview but had rejected the defence argument that the anal penetration in charge 6 was accidental. He also submitted that on one view, the jury had considered there was consensual sex with Ms Anson by you (and your co-accused) before the anal penetration, and perhaps after it.
12 In his written submissions[3], your counsel submitted that you had “admitted to ‘accidentally’ penetrating the complainant's anus while engaged in consensual vaginal sex with her”.
[3] Exhibit 1, [5]
13 I set out what you said in your interview about the allegation of anal rape in charge 6, and about the sexual activity surrounding that penetration:
“A49…[co-accused] laid down and she was giving him head (charge 5) and I was coming from behind (uncharged act).
A50And at one stage there I was struggling to get it in and accidentally put it in her bum (charge 6)
A51and she said, 'Ow, Charlie, that hurt', and I've said, 'Oh sorry, bloody, wrong hole.'
A52So anyway, she just kept going - going at it and got to go time, I guess, and I've just pulled out and, like, done it on the grass.”
---
“A170…she went down on [co-accused] after he lay on the bank (charge 5) and I come in from behind and ---
Q171 All right. So, your penis then went into her vagina?
A171 Yep. (uncharged act)
Q172Okay. And then you said at some stage that you put your penis into her anus. (charge 6)
A172M'mm.
Q173So tell me about that.
A173Because I was just – positioning wasn't the greatest, so I was struggling to just keep it in anyway
A174and there was just one stage where I've come out and then sort of, like, as I was, I guess, trying to put it back in, I just sort of felt something just sort of push and she said, 'Ow, that hurt', and I was like, 'Sorry'.
Q175Did she say anything else besides, 'Ow, that hurt'?
A175Yeah, she said, 'Ow, Charlie, that hurt', and I said, 'Oh sorry' and kept going and – that was it.
Q176Okay. So, then you put your penis where?
A176Back in the ---
Q177Vagina. (charge 7) [I note the video recording shows that
Mr Star nodded]. Okay, whilst you were doing that, what was happening with [co-accused]?A177He was getting head as far as I know.' (charge 5)”
14 In my view, there was no conflict between the version given by Ms Anson in her VARE, made in the hours following her immediate complaint and observations by others of her distress and after she was taken to Melbourne during the night to be examined by a consultant paediatrician who found injuries consistent with her account although conceded there were other possible causes[4], and given in cross examination of her by each counsel over two days in the special hearing, and your version as to the nature of the uncharged penetration immediately before charge 6, and the sexual activity the subject of charges 6 and 7; that is, there was no dispute that there was a vaginal penetration of her by you, followed by an anal penetration by you, followed by a vaginal penetration by you. The dispute lay in whether there was no consent by her and no belief in consent by you for each penetration.
[4] Exhibit D on the trial
15 Despite this seeming lack of conflict as to the nature of the sexual activity, your counsel submitted that given the evidence from Ms Anson was that despite her vocal and explicit expressions of lack of consent, she was subjected to non-consensual sexual penetration for an extended period by you and your co-accused, and given the jury's verdicts of acquittal on some charges, the verdicts were difficult to understand, and the view most favourable to you must be taken in deciding the basis on which to sentence.
16 He submitted that the most favourable view is that the anal penetration in charge 6 was fleeting and momentary, and you immediately desisted, putting, he submitted, this rape at a very low level of seriousness.
17 As discussed with your counsel on the plea, I do not consider the verdict on charge 6 difficult to understand, and in his written submissions[5], he submitted in paragraph 10:
“The verdicts as a whole, in context of the evidence as a whole, support the reasonable possibility that the jury found that the accused had engaged in consensual vaginal sex with the complainant immediately prior to momentarily putting his penis in her anus, in circumstances where she was not consenting and then, following her objection, returned to engaging in consensual sex together with the co-accused.”
[5] Where charge 6 is mistakenly referred to as ‘Count 3’.
18 I find the following factors important to consider:
· First, the jury delivered verdicts of acquittal on charges 1, 2, 3 and 4;
· Next, the jury were undecided about charge 5, the charge of oral penetration against your co-accused alleged to have occurred at the same time as charges 6 and 7;
· Next, the jury were not required to bring in a verdict on the uncharged vaginal penetration by you immediately before charge 6, so that their view as to whether that act constituted a rape as alleged, or whether they were undecided about that, is unknown; and
· Lastly, the jury were undecided about charge 7, the vaginal penetration immediately after charge 6, an act that you admit to, but deny was undertaken without consent.
19 It is possible that the jury rejected Ms Anson's account on some or all of the charges on which they acquitted; it is also possible that for those charges they were simply not satisfied beyond reasonable doubt that the prosecution had proved that she did not consent, and/or that the prosecution had not proved that each accused had no reasonable belief in consent, and the jury were undecided on either or both of these elements for charges 5 and 7; that is, it was possible. It is clear that they were satisfied beyond reasonable doubt that Ms Anson did not consent to the anal penetration in charge 6 and that you had no reasonable belief that she did consent.
20 While your defence was that the anal penetration was “accidental”, in that you did not intend to penetrate her anus, the jury were instructed that the prosecution are only required to prove an intention to sexually penetrate, not an intention to sexually penetrate the vagina, anus or mouth, as the case may be. If the act of sexual penetration that is intentionally performed is an act of sexual penetration as the law defines it, that will be sufficient for this element to be proved. By their verdict on charge 6, the jury were satisfied that you intentionally sexually penetrated Ms Anson, that she was not consenting to that penetration, and that you had no reasonable belief that she was. This was not a defence of accident as usually understood, that the act performed by you was not a conscious and deliberate act; you admitted that you intended to sexually penetrate her, and the evidence was there for the jury to find that element proved on your account and on hers.
21 In all the circumstances, I therefore sentence you on the basis that the verdict of guilty on charge 6 means that the jury were satisfied that you intentionally sexually penetrated Ms Anson by momentarily penetrating her anus, that she did not consent to that penetration, and that you knew that she did not consent. Further, I find that you immediately withdrew your penis when she reacted (it being in dispute whether she merely verbally objected or screamed in pain, but not in dispute that she did object). The verdict on charge 6 is explicable for the reasons I have outlined.
22 Having outlined the basis of the charge for sentencing, I turn next to the impact on Ms Anson. She provided an impact statement[6], which she courageously read out in court via video link, and her mother provided a statement[7] which was read out by the prosecutor.
[6] Exhibit 2
[7] ibid
23 Ms Anson was aged 17, an age that makes her a child in the eyes of the law[8]. She was a child, and I am satisfied that it is a reasonable conclusion after consideration of all the evidence that she was a virgin before the events of that night. For reasons not clear to me, the prosecution did not pursue the application made at the earlier trial heard before another judge, but not ruled upon before the jury was discharged, to lead that evidence in proof of the element of lack of consent. The decision was made to only lead that she had said to you and your co-accused that she was a virgin, that she had not had sex before, in proof of the element that you each had no reasonable belief in her consent. Each of you admitted in your interviews that she had told you that she had never had sex before.
[8] Section 3 Criminal Procedure Act
24 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long-term and serious, and both physical and psychological[9], and include future harm[10]. The courts have long recognised the dreadful impact on child victims of sexual offending. I quote from just one decision of the Victorian Court of Appeal which eloquently sets this out:
“It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve that that of the perpetrator. Frequently, the damage will be profound, and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost, and the capacity to form and maintain relationships seriously impaired.”[11]
[9]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[10]Adamson v R [2015] VSCA 194, [56]
[11]DPP v Toomey [2006] VSCA 90, [22]
25 In her impact statement, Ms Anson potently illustrates that her rehabilitation has barely begun in the two years since the offence was committed. The immediate impact was the pain of the anal penetration. But then followed the 'victim shaming' from members of her school and community, loss of her immediate educational opportunities as she was not able to do well in Year 12, this rape having occurred in September, close to her exams, and as things currently stand, she has been unable to pursue the education for the career option she had been working towards before the night of the rape. The damage to her has been profound, including to her self-esteem, with Ms Anson feeling worthless and suicidal, suffering nightmares and panic attacks, and continuing to live in fear and feeling completely emotionally isolated. She has had to resort to a high dose of anti-depressants prescribed by her doctor for her well-being, and her ability to trust others has been severely affected.
26 However, there are some positive aspects in her statement that I want to acknowledge; she has been truly fortunate to find a partner who understands when she does not want to be touched, and who has shown her that a sexual experience is not about, as she describes it, 'pain, power and fear'. Ms Anson has shown herself already to be a strong and resilient person. Although she says her life was ruined that night, she correctly recognises that she is not to blame, that she is not to feel guilty. Her mother is also not to blame for encouraging Ms Anson to go to an 18th birthday party. Her mother has her own personal reasons for feeling her daughter's trauma. As almost always happens when a crime is committed, the impact is wider than the immediate victim. But it must be kept in mind that the person who is guilty is the one found guilty by the jury – that is you, Mr Star. I take the impact on Ms Anson and her family into account, and I do hope that, with this sentence being delivered today there will, after two years, be a time to begin healing. I wish Ms Anson well.
27 Rape is one of the most serious crimes that the law recognises, as can be seen by the maximum sentence of 25 years' imprisonment, and from the fact that the law provides that rape is a category 1 offence, and a sentence of imprisonment must be imposed[12].
[12] Sections 3 and 5(2G) Sentencing Act
28 As with any offence however, even one regarded by the law as very serious, there are differing levels of seriousness. The prosecution conceded that the offence in charge 6 was not at the higher end of objective seriousness for a charge of rape. I have already referred to your counsel's submission that your offence is at a very low level of seriousness.
29 I sentence you on the basis that the offence of which the jury found you guilty is a lower level of seriousness. However, I find it is not at the lowest or a very low level, and I assess your moral culpability as not low, for the following reasons:
· First, this offence was a rape of a person you knew to be aged 17;
· Next, as a child is a person under 18 years, you committed a rape of a child;
· Next, you met Ms Anson only shortly before the rape;
· Next, you were told by her that she had never had sex before; and
· Lastly, the offence has had a severe impact on her.
30 Weighed against the seriousness of your offence, are matters in your favour that I must take into account in deciding the appropriate sentence[13]. The first of these is your youth, which means that any sentence that I impose must have, as its principal purpose, your rehabilitation.
[13] I was not told on the plea about his condition of ‘cavernoma’ or that he had previously been prescribed anti-depressants. These personal circumstance were notified to me after the sentence and ruling was delivered by counsel then appearing, and therefore noted on the record for custody management issues.
31 You are now aged 22 and were aged 20 at the time of the offence. You have no criminal history and have no charges pending in the two years since the offence was committed. You have strong family and community support, a good work record, and witnesses attested to your good character and contribution to the community at the trial, and again through written references[14] for the plea. While good character generally carries less weight in cases of sexual offending, because of your young age, it does have significance for your prospects for rehabilitation. The time that has passed since the offence is not a matter of mitigation in the circumstances of this case, but I do not ignore that you have not committed any further offences of any kind in that time. Further, I find that your passage through the criminal justice system is likely to have had a deterrent effect on you, such that the sentence I impose does not need to serve that purpose. I find that your prospects for rehabilitation are good, and that you are unlikely to reoffend in the same way again.
[14] Exhibit 2
32 In sentencing you, I take into account that general deterrence is of the utmost importance in cases involving sexual offending, especially against a person under 18 years. That means that by my sentence of you, the court must seek to deter other young men from committing a sexual offence in similar circumstances. Because of your youth and good prospects for rehabilitation, I do not consider the sentence I impose needs to deter you from reoffending in the same way. However, the court must impose a sentence that is just in all the circumstances, and that reflects the community's abhorrence of sexual offending.
33 On charge 6 of rape, you are convicted and sentenced to 4 years' imprisonment. I direct that you serve a minimum term of 2 years before becoming eligible for parole. You have served no days in custody.
34 I turn now to the application made by your counsel for me to stay this sentence under s.309(2) of the Criminal Procedure Act, pending an appeal against conviction, and a bail application being made in the Supreme Court. I can only stay the operation of the sentence if I am satisfied that it is in the interests of justice. Your counsel accepted that such an application should only be granted in exceptional circumstances.
35 The prosecution opposed the application to stay the operation of the sentence under s.309. The application under that section was likened to an application for bail pending appeal to the Court of Appeal, and it was submitted that the effect of a jury verdict should not be treated as contingent upon confirmation by an appellate court. It was further submitted that there was a presumption in favour of the validity of a conviction and sentence and an appellant does not have the right to have a conviction or sentence suspended pending the hearing and determination of his or her appeal.
36 Your counsel submitted that the verdict of guilty on charge 6 was unreasonable, given the other verdicts in the trial. It was said to be unreasonable because if the jury accepted your account and that of your co-accused that there was consensual sexual activity before and after the anal penetration in charge 6, then the jury wrongly and unreasonably rejected your account that the anal penetration was accidental.
37 In my reasons for sentence, I have explored the basis for the verdict on charge 6 and found it was explicable, and in your counsel's submissions on the plea, he conceded that the explanation was a reasonable possibility.
38 As to the submission of the verdict being unreasonable because if the jury accepted your account and that of your co-accused that there was consensual sexual activity before and after the anal penetration in charge 6, then the jury wrongly and unreasonably rejected your account that the anal penetration was accidental, I have two reasons for not agreeing with that submission.
39 First, the jury were undecided or not required to render a verdict on the sexual activity before and after charge 6, and so there is no basis on which to find that they accepted your account and that of your co-accused that there was consensual sexual activity before and after the anal penetration in charge 6. Second, your account and that of your co-accused of consensual sexual activity would not have led the jury to wrongly and unreasonably have rejected your account that the anal penetration was accidental. As I have already explained, there is a reasonable basis for the jury rejecting your defence of 'accidental' penetration, and for them being satisfied beyond reasonable doubt that the element of intentional sexual penetration was made out, whether or not the sexual activity surrounding the anal penetration was consensual, and despite your account that, in effect, you intended to penetrate her vagina but mistakenly penetrated her anus.
40 Your counsel further submitted that as the charges on which the jury were undecided have been discontinued by the prosecution, a successful appeal against conviction on charge 6 would likely result in an acquittal and not a re-trial. In those circumstances, he submitted to have a young man with no prior convictions subject to a mandatory prison sentence would be unnecessarily detrimental.
41 I have had regard to all the authorities[15] to which both counsel referred me. I note that the case before me is entirely different to that of Costa[16], where the validity of the verdicts was called into question by reason of a complaint by a juror after verdict; the concession by the prosecutor and the remarks by the Court of Appeal were made before any investigation was carried out into that complaint, which was ultimately not proved. The case before me is also entirely different to Gant[17] where the trial judge had such concerns about the safety of the verdicts on the basis that it was not open on the evidence to exclude a reasonable possibility consistent with innocence, and also had concerns for the health of one of the accused, that he felt compelled to stay the sentence. As I have explained, in my view, the verdict of the jury on charge 6 was open on the evidence. I say nothing about the other verdicts.
[15] Costa [2013] VSCA 5; De Marchi [1983] 1 VR 619; Gant [2016] VSC 662; Martin (a pseudonym) [2019] VSCA 15; Ash [2010] VSCA 117
[16] [2013] VSCA 5
[17] [2016] VSC 662
42 After consideration of the authorities, the submissions, and the findings I have made in the course of my sentencing remarks, I am not satisfied that exceptional circumstances exist, and I do not find that it is in the interests of justice to stay the operation of the sentence.
43 Accordingly, the sentence having been passed, it must now come into effect.
44 Mr Nibbs, will you be going to see Mr Star?
45 MR NIBBS: Yes, Your Honour.
46 HER HONOUR: Yes, all right. Thank you.
47 MR NIBBS: Before he is taken, formally taken into custody, there is a couple of custody management issues I would like to raise.
48 HER HONOUR: Yes, certainly.
49 MR NIBBS: I do not know if it was raised on the plea[18], but I was told this morning that he has a cavernoma - the spelling is c-a-v-e-r-n-o-m-a - which is an abnormal cluster of blood vessels in the brain, which may be of concern. He had also previously been prescribed anti-depressants, so I would simply ask that those two matters be noted, and he should see a nurse.
[18] Its noted in footnote 13, it was not raised on the plea, or on the application to stay the operation of sentence.
50 HER HONOUR: Yes, thank you. Do you have a document there?
51 MR NIBBS: I do not have anything.
52 HER HONOUR: No, just information.
53 MR NIBBS: This is the information I was provided this morning with.
54 HER HONOUR: Yes, all right. Could you just spell that symptom again, the condition?
55 MR NIBBS: The condition?
56 HER HONOUR: Yes.
57 MR NIBBS: It is a cavernoma. c-a-v-e-r-n-o-m-a. Also, being his first time in custody, it should also be noted.
58 HER HONOUR: Yes, of course, all of those things will be noted onto the record that will be provided to custody.
59 MR NIBBS: Yes, Your Honour. And I understand that a request has already been made in term of transcripts of the closing and Your Honour's charge; I have simply been instructed to ask for those again to be expedited.
60 HER HONOUR: Those to be expedited. Yes, I will do that. And my sentencing remarks will be available immediately after sentence today.
61 MR NIBBS: Thank you, Your Honour.
62 HER HONOUR: And although they will not be the revised remarks they will be available.
63 MR NIBBS: I appreciate that, Your Honour.
64 HER HONOUR: Yes, thank you. I understand this is difficult for everyone, but Mr Star may now be taken into custody. Yes, thank you.
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