Director of Public Prosecutions v Stern (a pseudonym)
[2022] VCC 1155
•19 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ANTHONY STERN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2022, 8 July 2022 |
DATE OF SENTENCE: | 19 July 2022 |
CASE MAY BE CITED AS: | DPP v Stern (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1155 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr D. Hannan with Mr Lewis | Office of Public Prosecutions |
For the Accused | Dr F. Fitzgerald | Doogue & George |
HIS HONOUR:
1Anthony Stern[1] after a short trial on 6 May 2022 you were found guilty of two charges of rape, maximum penalty 25 years imprisonment. You were acquitted of a further charge of rape. The plea hearing occurred on 8 July 2022.
[1] A pseudonym.
2I am required to sentence you in accordance with the jury verdict. The evidence at the trial ranged over a number of events during and after your sexual relationship with the complainant, including an act of anal intercourse that was the subject of Charge 3 of which you were acquitted, and a further alleged act of non-consensual anal intercourse in Canberra which was not the subject of a charge. These matters and other issues including financial arrangements between you and the complainant were hotly contested and were the basis of much puttage to the complainant as to her motives for making the allegations against you. The jury must be taken to have rejected the alleged motives put to the complainant. For the purposes of sentencing you it is unnecessary to make further reference to those matters canvassed and they are not to be held against you in sentencing.
3The complainant was nearly 32 in March or April 2013. She was separated and had two primary school aged girls that she was parenting. She was living in her own home in a western suburb of Melbourne. You were aged 33 and also separated and were seeking custody of your son then aged around nine. You were living in another western suburb in a rented property.
4You met each other on a dating website and after various exchanges she visited you and a short time thereafter a sexual relationship commenced, and she was staying at your home overnight. She gave evidence that on the first occasion she visited you she had something to drink and woke up in bed smelling of vomit, believing that she had had intercourse, including anal intercourse. She gave evidence you told her that you had given her a shower. You were unable to recall any such event, and it was not the subject of any charge.
5The events giving rise to Charge 1 occurred during the daytime. Charge 1 alleged that you raped the complainant when after you had sexually penetrated her you did not withdraw your penis from her vagina on becoming aware that she was not consenting or might not be consenting to the penetration.
6Early in the relationship, the second or third time the complainant was at your house, the two of you commenced sexual intercourse. You suddenly turned into a 'complete monster', you started attacking her, hitting her, pulling her hair, calling her terrible names and hitting her breast. You were getting ‘really rough’ with her. She was struggling, screaming, feeling pain and telling you to get off. You also squeezed her mouth. She was telling you to stop and seeking to push you off but you would not stop and you continued until you ejaculated. After you got off the complainant she was angry and remonstrated with you telling you that she had told you to stop. You then said to her that she had not used the safe word 'tomato'. You told her that you had engaged in role-plays with your former wife and your former wife enjoyed it. The complainant disputed that there had ever been any discussion about role-plays or the use of a safe word. In discussions you made the complainant feel that it was her fault.
7You gave evidence at the trial. You denied this particular event. While you said that there had been some discussion about the use of a safe word it was never used in the course of any sexual interaction.
8The jury must be taken to have rejected your denial of this event and accepted the complainant’s account that notwithstanding her manifest withdrawal of her consent to the intercourse you refused to withdraw and continued the act of sexual intercourse.
9Notwithstanding this event and reservations by the complainant as to whether she should continue her relationship with you, you subsequently in early 2014 moved into the complainant’s house in a western suburb, along with your son, and enrolled him at the same school as the complainant’s girls.
10The events giving rise to Charge 2 are alleged to have occurred during 2014 when you were living with the complainant. As far as the complainant was concerned it was only to be a temporary arrangement and you offered to pay her board but she did not insist, but you gave evidence that you were contributing to the household expenses.
11You were unable to obtain alternative accommodation and it was in that context that arguments and disputes arose between the two of you.
12The events giving rise to Charge 2 commenced with an argument downstairs. The complainant fled upstairs to her bedroom and sought to shut the door. You followed her, pleading with her to be allowed to stay. She wanted to be left alone. You came into the bedroom and she was telling you to get out. You were emotional. She was walking back towards the ensuite, lost her footing, and you broke her fall and ended up on top of her in the ensuite. Despite her protests and her attempts to push you off you then proceeded to have intercourse with her until you ejaculated. She said she was fighting, yelling and telling you to get off. She was unable to remember whether you apologised after the event. In your evidence at the trial you emphatically denied that this event occurred. The jury must be taken to have rejected your denial.
13The relationship between the two of you continued throughout 2014. The complainant was concerned as to your drinking and raised the issue of having couples counselling. After a family holiday to the Gold Coast, you agreed to go to counselling with her. You were adamant that the issue of the sexual relationship was not to be discussed at the counselling. Subsequent to the counselling in early 2015 you were able to obtain a rental property and left the complainant’s house along with your son.
14Notwithstanding that you were no longer living with the complainant, interactions with her and the children continued due to common extracurricular activities. In mid-2015 the complainant and her children accompanied you and your son for a week in the ACT where you were on a work trip. She alleged that during the holiday there was an event of non-consensual anal intercourse. You denied that this event occurred.
15Commencing in December 2015 there were exchanges of text messages over financial arrangements between the two of you, including in relation to a motor vehicle, but also where the complainant alleged that she had had a dream that she had been the subject of anal rape. You did not expressly respond to the allegation, but exchanges continued over other outstanding debts and the use of a car that had been purchased for her by you under a salary sacrificing arrangement with you agreeing to pay the lease costs for one or two years to acquit moneys owing to her. The vehicle was eventually returned to you in September 2017.
16Finally in September 2017 the complainant attended at the local police station alleging that you had stolen jewellery from her. When advised that the police did not intend to pursue the matter, she then made allegations of sexual offending in a statement dated 12 September 2017 that became the subject of this trial. She recorded a pretext telephone conversation with you in November 2017. You were arrested and participated in a record of interview on 18 December 2017 where you denied the allegations against you.
Victim impact statement
17The complainant provided a powerful victim impact statement as to the impact both of the offences and the delay and trial process has had on her. She feels that your conduct and the trial process have taken nearly a decade out of her life. She has been triggered into feeling constant pain, fear and lack of trust due to the process. She is feeling confused, angry and distressed and frustrated by your denial of the events. The crimes have 'impacted all corners of my life. Every day feels like a struggle. I struggle to feel enjoyment in life. I feel robbed of my power, my soul taken against my will.' She is suffering even more regular flashbacks as to the events and they have impacted her ability to provide for her children.
18She now feels insecure in her own home, she avoids friends and social interactions. She can no longer feel true intimacy and connection. She feels a sense of guilt and sadness 'because I know and feel that it’s unfair to those who have done nothing wrong.' She feels scared in the world. She feels humiliated and felt no control of her privacy and concludes by saying 'these crimes have left me feeling so scared in this world and has taken away so much of my life'.
19It is clear from the victim impact statement that your offending has had a major and continuing impact on the complainant. This was also clear from her demeanour in giving evidence in the trial.
20The impact on the complainant of your offences must be taken into account in sentencing and goes to the seriousness of your offending.
Seriousness of the offending and moral culpability
21The crime of rape is an inherently serious offence, as evidenced by the 25-year maximum penalty and involving as it does the violation of the bodily integrity of the complainant. These are both serious examples of a serious offence both in their execution and impact. Charge 1 involved you escalating an event of consensual sexual intercourse into inflicting violence on the complainant and seeking to demean her by your verbal comments. It was, as submitted by the prosecution, degrading and endured despite the complainant making it very clear that your conduct was a long way from the consensual sexual event that had earlier commenced.
22Charge 2 occurred well into your domestic and sexual relationship with the complainant where she was seeking to have you leave her home. Her conduct in running away from you following an argument made it clear that she was not interested in any consensual sexual event at the time yet you tackled her to the floor of the ensuite and proceeded to have intercourse with her over her protests. Your conduct was, as submitted by the prosecution as an aggravating matter, a clear breach of the relationship of trust inherent in the marital type relationship that then ensued between the two of you.
23Further, as contended by the prosecution these were two serious examples of a serious offence, that as I have indicated have had a profound and continuing impact on the complainant.
Matters in mitigation
24Your counsel put a number of matters in a comprehensive plea in mitigation. First you come before the court as a person with no prior or subsequent convictions and a person of good character. You put your character in issue in the trial. Notwithstanding your prior good character the jury accepted the complainant’s account of the events.
25You are now aged 42. Your personal background is set out in the report of
Mr Candlish, psychologist, which I incorporate by reference. You were born in Sydney and brought up as an only child from an intact marriage where your father worked as a probation/patrol officer and your mother as a casual schoolteacher. You grew up in regional New South Wales. You had what was described as an uneventful childhood that included involvement and participation in a touring circus troupe.26You completed your VCE and enrolled in a business degree at Latrobe University. Around this time you were diagnosed with Crohn’s disease. You completed the degree of bachelor of business with an honours level specialisation in financial management. While studying you met your first wife and moved to Canberra where you worked with an ACT government agency. After four years in Canberra you moved to Albury-Wodonga where your son was born in 2006. You worked with a local government authority there. In 2008 you relocated to Melbourne and settled in the Mount Dandenong area and commenced working as a finance officer in the public sector in the city. You are a qualified accountant and continue to work in that role in the public sector.
27You separated from your wife in 2010. You began to drink excessively in the context of the marriage breakdown. There were court proceedings as to the custody of your son with you obtaining primary custody of him commencing in 2014. It was at this stage you commenced cohabitation with the complainant.
28After separating from the complainant you took action to address your drinking, anxiety and depression. You were referred to a psychiatrist in 2015. You were diagnosed with ADHD and have been placed on medication. Following your conviction you suffered severe anxiety and were suicidal and were treated by a CAT team and have been referred to a psychologist.
29A key matter raised in mitigation on the plea was your long-standing Crohn’s disease. You required major surgery in 2018 and further surgery in 2019. While the report from the Alfred Hospital indicates that your condition is currently well-controlled you require regular infusions, which is an indication of the severity of the condition. Your doctor indicates that you are at risk of a relapse if subjected to emotional stress in prison.
30You met your present partner in 2017 and along with your son commenced living with her in 2018 in suburban Melbourne. She gave evidence as to the continuing impact of your condition on your daily life, which is significant. She also gave evidence as to your character and your relations with her and how you act properly in all matters sexual and non-sexual and you do not have a violent disposition.
31In 2020 through assisted reproduction she gave birth to a son. A further child is due in December this year.
32A sentence of imprisonment will have a major impact on your partner, and on the children including your own son who is likely to be returned to his mother with whom in recent times he has had relatively little involvement with.
33On the plea Dr Fitzgerald tendered a character reference from a long time work colleague as well as a number from family members. All the references speak very highly of you. Members of your partner’s family were also present in court to support you on the plea.
34You are entitled to bring to bear to your credit your past good character and role as a productive member of the community.
Psychological report
35Your counsel relied on a report from Mr Cavendish, psychologist, who opines that you are suffering from a generalised anxiety disorder as well as a persistent depressive disorder. He is of the view that your diagnosis of Crohn’s disease is likely to have contributed to your symptoms of anxiety and depression potentially creating a negative feedback loop and impacting further on your physical symptoms. Imprisonment in his view will exacerbate your mental health symptoms. He is of the view that you require continued pharmacological and psychological intervention. He is of the view that you have a high number of protective factors and fall into the low risk category for sexual reoffending.
Prospects of rehabilitation
36I am required to assess your prospects of rehabilitation. Having regard to your strong social support and the protective factors of your partner and children, your prior good character and the opinion of Mr Cavendish then, notwithstanding your continued refusal to accept the verdict and thus your lacking in remorse, I regard your prospects of rehabilitation as good.
37On the plea the prosecution accepted that limbs 5 and 6 of R v Verdins [2007] VSCA 62 were engaged. A term of imprisonment will weigh more heavily on you than a person without your physical/psychological conditions and there is a risk that your condition may deteriorate in prison and I must take these matters into account.
Sentencing submissions
38A key issue on the plea was that of delay. It is now over eight years since the first offence occurred. The allegation of rape against you was first formally made by the complainant in the context of the alleged theft of jewellery in September 2017, nearly five years ago, although it had been raised in a text message in December 2015. It is four and a half years since you were interviewed by the police on 18 December 2017. You were originally charged with these offences on 1 November 2018. You were committed for trial in May 2019. Trial dates scheduled for August 2020 and October 2021 were both vacated due to trial readiness and COVID related issues and the trial ultimately proceeded in April of this year.
39There has thus been considerable delay for which you have not been responsible since the complainant first made her complaint to the police.
40As your counsel submitted, you have had this matter hanging over your head since the first formal police interview in December 2017.
41These are matters that I take into account in your favour.
42You are now aged 42, facing your first term of imprisonment, whereas when the first offence was committed you were aged 33. The delay is also relevant to the issue of your rehabilitation. In the period since the offences and indeed in the period since you ceased your relationship with the complainant you have established a new relationship. You had been in the workforce since then and until you were forced to cease upon revocation of our bail. You have not committed further offending. These are matters that I take into account in your favour.
43Further, in sentencing you, I take into account that in the COVID environment a sentence of imprisonment will be more burdensome than in earlier times. You will be required to undergo a period of quarantine upon admission into prison. Programs and visits are limited, and you face a risk of infection in circumstances where your ability to protect yourself is more limited than were you in the community. These are all matters that I take into account in your favour.
Current sentencing practices
44In sentencing you, along with matters such as the seriousness of the offences, the maximum penalty, the impact of the offences on the complainant and your personal circumstances, I am required to have regard to current sentencing practices. The prosecution referred the court to the cases of Samuels v The Queen [2019] VSCA 14 and Johns v The Queen [2016] VSCA 97 as illustrating current sentencing practices and as being comparable. I see Samuels as distinguishable given the greater extent of violence in that offending.
45I regard the case of Johns as being of considerable assistance.
46Each case turns on its own facts, but considerations of equal justice will require reference to comparable cases and I have had regard to that case as providing something of a yardstick.
47In the present case considerations of delay, and subsequent lack of offending, and the more burdensome impact of a sentence of imprisonment due to your physical/mental condition are matters that must be accorded some weight in your favour.
Purposes of sentencing
48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it and your personal circumstances and those of the complainant. I am required to balance the interests of the community in denouncing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into society.
49In sentencing for the crime of rape, denunciation is a very important sentencing consideration. In the case of DPP v Short [2006] VSCA 120 at [42] the Court of Appeal said:
'Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The courts, when dealing with such cases, must have regard to the vindication of the community's social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion'.
50General deterrence is thus also a consideration. Specific deterrence has little work to do in your case. You have good prospects of rehabilitation. At the end of the day, however, having taken into account all the matters put on your behalf and giving full weight to the delay, the impact of a sentence of imprisonment on you on your physical and mental health and the need to serve a sentence as a 42-year-old and in the COVID environment, denunciation and just punishment call for a significant sentence. Your conduct on those two occasions must be utterly condemned. The courts must vindicate the entitlement of women involved in domestic relationships to freely choose whether to engage in sexual activity. Your conduct on the two occasions the subject of these charges was a complete abrogation of the rights of the complainant and notwithstanding all the subjective matters put on your behalf calls for a significant sentence.
Sentence
51On Charge 1 of rape you are sentenced to five years' imprisonment. On Charge 2 you are sentenced to five years imprisonment. I direct that six months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1 making a total effective sentence of five and a half years' imprisonment.
52I direct that you serve three years and four months before being eligible for parole. I declare you have served 11 days pre-sentence detention excluding today and direct that it be deducted administratively.
53I want to thank counsel in the trial and in the sentence hearing and I adjourn the court sine die.
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