Director of Public Prosecutions v Stewart

[2023] VCC 1987

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYAN STEWART (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial 6-15 March 2023; Plea 30 June 2023, 13 October 2023
DATE OF SENTENCE:	2 November 2023
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2023] VCC 1987

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Guilty verdicts on two charges of rape following a jury trial – Victim was the partner of the offender and pregnant with his child – Offending comprised two separate incidents in a hospital bathroom – Victim in hospital due to high-risk pregnancy – Youthful offender – Delay – Good prospects of rehabilitation – No relevant prior convictions or any sexual offending since the offending in September 2015.

Legislation Cited:      Sentencing Act 1991; Sex Offenders Registration Act 2004.

Cases Cited:Jurj v The Queen [2016] VSCA 57; R v GJ [2008] VSCA 222; Samuels v The Queen [2019] VSCA 14; Samuels v The Queen [2018] VSCA 251; Flynn (a pseudonym) v The Queen [2020] VSCA 173.

Sentence:                  Total effective sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S MacDougall	Office of Public Prosecutions
For the Accused	Ms S Joosten (Trial) Mr L Cameron (Plea and Sentence)	Cahills Barristers and Solicitors Slades & Parsons

HIS HONOUR:

Introduction

1Bryan Stewart,[1] on 15 March 2023,[2] you were convicted by a jury of two charges of rape.[3] The jury acquitted you of a third charge of rape.[4]

[1]        A pseudonym.

[2]Trial commenced on 1 March 2023 with the jury discharged on 3 March 2023. Trial recommenced on 6 March 2023 leading to verdicts on 15 March 2023.

[3]Charges 1 and 2 on the Indictment.

[4]Charge 3 on the Indictment.

2The offence of rape carries a maximum penalty of 25 years’ imprisonment. 

Circumstances of the offending

3It now falls upon me to sentence you in respect of the offending of which you were found guilty.

4You will be sentenced on a basis consistent with the verdict of the jury. Your counsel accepts that this means you fall to be sentenced on the evidence your victim gave at trial in respect of the two separate incidents in the bathroom of the hospital where she was a patient expecting your child.

5The victim, Ms Carpenter,[5] was your partner at the relevant time. You met her in late 2010 or early 2011. She was 26 years old at the time and had a three year old daughter. You were aged only 17. You eventually moved in to live with Ms Carpenter and her daughter. Your relationship developed into a romantic one and you had a daughter together born in 2012.

[5]        A pseudonym.

6In 2015, Ms Carpenter became pregnant with your second child. Your second child, a son, was born prematurely by emergency c-section on 14 September 2015. Ms Carpenter was admitted to hospital some six weeks before the birth. She had pre-eclampsia and scans revealed issues with the baby’s growth. The pregnancy was a high-risk one, something you were well aware of.[6]  

[6]See e.g. Answers 86, 169, 201, 295-6, 316, 322 of police interview. (Exhibit I)

7You visited Ms Carpenter at the hospital on a number of occasions. The offending subject to the two charges occurred during these visits prior to the birth of your son.

8You visited Ms Carpenter in early September 2015.  During this visit, Ms Carpenter’s eldest daughter’s grandmother, Ms Poole,[7] was present in the ward, along with Ms Carpenter’s two daughters. The eldest was aged seven and the youngest, who is also your daughter, was aged three at the time. During the course of the visit, Ms Carpenter went to use the bathroom situated in the same ward near her bed. She entered the bathroom and locked the door. You entered the bathroom having unlocked the door from the outside. Having entered the bathroom you locked the door.

[7]        A pseudonym.

9You said to her that she owed you and ‘this is why I cheat’, and that the baby needed to be born. Having got off the toilet, Ms Carpenter pulled her underwear and leggings up and walked to the sink to wash her hands. She was crying and made it clear to you that she did not want to engage in sex due to the baby. You pulled down Ms Carpenter’s  pants and underwear. You then opened your trousers and pulled them down slightly. Ms Carpenter was bent slightly over the sink and you placed your hands on the side of her hips and penetrated her vagina with your penis. Ms Carpenter experienced pain and was crying when this occurred. Having ejaculated, you pulled your pants back up and left the bathroom (charge 1 – rape).

10Ms Carpenter remained in the bathroom for a few more minutes. She cleaned herself and composed herself before walking out. She did not say anything to Ms Poole about the rape.

11You visited Ms Carpenter again some four or five days before the birth of your son. Ms Poole and the two young girls were again present on this occasion. At some stage during your visit Ms Carpenter, who was still in the same ward, went to use the same bathroom. She locked the door, and having used the toilet, was standing at the sink.

12You unlocked the door and entered the bathroom. Having entered, you locked the door. You expressed your eagerness that your son needed to be born. At this point, Ms Carpenter was brushing her teeth. You took the toothbrush off her and said ‘I’m going to break your fucking water’. Ms Carpenter believed you were going to hit her and she covered her face. You were standing directly behind her and bent her over the sink. You pulled her pants down and began to ram the toothbrush up in between her thighs and eventually penetrated her vagina with the toothbrush. Ms Carpenter was in pain and could feel the bristles coming in and out of her vagina. At various stages before and during the penetration, Ms Carpenter expressed her objection and her fear for the baby. You then placed the toothbrush on the sink and walked out (charge 2 – rape). Ms Carpenter noticed what she believed to be blood and discharge around the bristle area. She placed the toothbrush in a paper towel and threw it in the bin next to the sink. She was bleeding from her vagina and placed a paper towel and later a pad.  Having regained her composure, she left the bathroom. You were still present in the ward. After you had left, Ms Carpenter began to cry. However, she did not tell Ms Poole or anyone else about what had occurred.

13Your relationship with Ms Carpenter continued until your separation in around August 2017.

14According to Ms Carpenter, she made her first complaint to a friend some time shortly after the birth of her son. Following the separation, Ms Carpenter made a complaint to Ms Poole. You commenced proceedings relating to access to your children in around 2019. Ms Carpenter reported the offending to the police on 11 October 2019.

15You were interviewed by the police on 25 November 2019 and charges were filed on 28 May 2020.[8]

[8]See chronology – part of exhibit A.

Impact upon the victim

16I have had regard to Ms Carpenter’s victim impact statement which was read out in court.[9] Ms Carpenter underwent counselling for some time following the offending. She has struggled with nightmares and her sleep pattern has been disturbed. She lost a lot of weight as a result of not eating. She struggles with anxiety and this has interfered with her ability to go out and lead a normal life. Other than her mother, Ms Carpenter shut herself off from other family members. She is anxious about people whom she knows asking her questions about the offending. Her inability to face people has meant she has not been able to take her children to activities they should be partaking in.

[9]Exhibit B (highlighted passages were not read out).

Background

17Your background is set out in detail in Mr Cameron’s written submissions[10] and in Ms Cidoni’s psychological report dated 28 June 2023.[11]

[10]Exhibit 1.

[11]Exhibit 2.

18You were born in Queensland in 1993. You have an older sister, currently residing in Queensland, with whom you have maintained contact. Your parents worked in the horse racing industry. They would care for and train horses. As a result of their employment, the family lived in both Darwin and Alice Springs in the Northern Territory for some years before returning to Queensland.

19When you were around five years old and living in Alice Springs, your mother was involved in a traumatic track accident as a result of which she became paralysed. Slowly, she regained movement, but her right leg remained paralysed and she was unable to return to work or perform many basic tasks. She was wheelchair bound for four years. As a result of your father’s work commitments, you and your sister cared for your mother and performed tasks beyond what might be expected of someone so young.[12]

[12]See letter from mother dated 19 May 2023 – Exhibit 5.

20At the age of nine when the family were back in Queensland, your parents separated. You and your sister moved to Victoria to live with your mother. Since this separation, your contact with your father has been very limited and remains so.

21Your mother re-partnered and had two further children who are now teenagers. You have been actively involved in the lives of your step siblings. You have maintained a very close relationship with your mother.

22Your schooling was disrupted as a result of your family’s movements. You attended a number of different primary schools and two high schools. The disruption meant that you were unable to establish lasting friendships. You describe yourself as an average student academically. However, you excelled in practical subjects like woodwork and metalwork.

23You left school in Year 10 and commenced a four year boilermaker’s apprenticeship. As a result of your then partner, the victim in this matter, falling pregnant with your first child, you had to leave the apprenticeship midway and find better paid employment. You worked full time at an abattoir. You later worked for a fencing company, as well as running your own firewood business. Despite being charged with the offending in May 2020, you have maintained employment. You worked full time as an excavator and bobcat operator, labourer and boilermaker/welder. I have had regard to Mr King’s reference,[13] your most recent employer. You commenced working for Mr King’s company in July 2022. Mr King is aware of the charges and the fact that you have been found guilty.  He speaks in glowing terms of you both as a person and an employee. He will not hesitate to employ you again upon your eventual release.

[13]Letter from Mr King dated 27 April 2023 - Exhibit 6.

24It is plain that you have a strong work ethic, maintaining employment from a young age and right through until your remand.

25You met your current partner in 2020. Prior to your remand, you had moved in together, discussed future plans, including marriage, and became engaged in 2021. Following three miscarriages, you had your first child together, born on 14 April 2023. I was told that your partner is struggling in your absence with practical, financial and emotional support. She has moved in with her parents, who along with your mother, provide her with whatever support they can.[14]

[14]See letter from partner dated 16 May 2023 – Exhibit 4.

Nature and gravity of the offending

26While it should not be necessary to repeat, rape is a very serious offence. That fact is underlined by the maximum penalty of 25 years’ imprisonment.

27The victim was your partner and the mother of your young daughter. She was pregnant with your second child. She had been admitted to hospital as her pregnancy was one of high risk. You were aware of that fact. Rather than showing your partner the love, affection and the support she needed at this difficult time, you instead acted in a grossly cruel manner putting your own sexual needs ahead of the victim and your yet to be born child’s health.  You showed absolutely no respect or regard for her vulnerable position. The offending occurred in a hospital, where as a patient, she was entitled to feel safe.

28You ignored her distressed state and her objections.  Instead, you offended in circumstances that, particularly in respect to charge 2, humiliated and degraded the victim. The offending was brazen. It occurred in close proximity to Ms Poole and the two young girls who were close by outside the bathroom.

29Both rapes caused her pain. The offending, unsurprisingly, has had a profound impact on the victim.

30As submitted by Mr Cameron, the rapes lacked certain aggravating factors. This included the fact that the offending was not pre-meditated and the two incidents were of relatively short duration.[15] The absence of these additional factors does not, of course, suggest that the offending was not serious. It plainly was grave offending.

[15]See [28] of Exhibit 1. No issue was taken by the prosecution in relation to (a) – (g). See Jurj v TheQueen [2016] VSCA 57, [80].

31I accept Mr Cameron’s submission that I cannot be satisfied to the requisite level, beyond reasonable doubt, that the bleeding suffered by the victim after the second rape was directly related to your offending.[16]  

[16]I note the prosecution did not suggest otherwise.

32The sentence I impose must justly punish you. It must reflect the community’s abhorrence of such offending and denounce your conduct.

33General deterrence must be given prominence in the sentencing exercise. The sentence I impose must seek to deter those who may be minded to offend in a similar manner against their partners.

34I accept, as addressed later in these reasons, you have good prospects of rehabilitation.

Matters in Mitigation

35On your behalf, Mr Cameron presented a comprehensive and realistic plea in mitigation. He acknowledged the seriousness of the offending and the inevitability of a term of imprisonment with a non-parole period. Mr Cameron urged the following matters on your behalf:

(i)No relevant prior convictions.

(ii)Youth at the time of the offending.

(iii)Delay relevant to both rehabilitation and as additional punishment.

(iv)The burden of imprisonment.

(v)Positive prospects of rehabilitation.

36As you were convicted following a trial, I am unable to discount your sentence on account of a plea of guilty or any remorse.[17]

[17]Of course, absence of a plea of guilty or remorse does not aggravate the offending.

37However, I accept that there are important matters that allow me to reduce the inevitable sentence of imprisonment.

38You are now aged 30 and have no relevant prior history.  You met the victim at the very young age of 17 and were aged 22 at the time of the offending. Your youth at the time is a relevant matter in mitigation. While the offending was very serious, your youth and immaturity allows me to give greater emphasis to ensuring, as far as possible, your successful rehabilitation.

39The offending occurred in September 2015. Eight years have elapsed. Mr Cameron submitted that your progress over the last eight years should give the Court some confidence that upon your release you will return to the community as a ‘functional and contributing member’.

40Bearing in mind the submission as to your rehabilitation, Mr Cameron placed your subsequent criminal history before the Court. This included offending that related to the victim, Ms Carpenter. On 29 October 2018, you were convicted of criminal damage, unlawful assault and two offences of contravening a family violence interim order and sentenced to one month imprisonment and a 12 month Community Correction Order.[18] I was told that this offending occurred between October and December 2017, shortly after your separation from Ms Carpenter when tension over the end of the relationship and access to your children played a part in the offending. On 12 May 2020, you were convicted of a further contravention of a family violence intervention order.[19] You were convicted and sentenced to an adjourned undertaking with which you complied.

[18]This involved smashing the windows of Ms Carpenter’s vehicle, assaulting Ms Carpenter’s friend, posting a video on Facebook and acknowledging Ms Carpenter by waving at her.

[19]The offending was at the low end, involving sharing a message on Facebook.

41You also appeared before a court on 17 December 2015, when you received a fine with conviction for two offences of shop theft, two offences of fail to answer bail, unlawful assault and entering a private place without authority or excuse. I was not provided with details of this offending, other than it did not relate to Ms Carpenter.

42Despite these subsequent matters, Mr Cameron relying upon a number of matters, submitted that your prospects of rehabilitation are good.

43On the whole, I am prepared to accept that you have good prospects of rehabilitation. You have no relevant prior history. You have not been in any trouble since these matters in September 2015 for any sexually related offending. There is nothing else pending. While you have these subsequent matters, most related to Ms Carpenter and occurred in a situational setting which is no longer applicable. You are no longer in contact with Ms Carpenter. You enjoy a strong and honest relationship with your current partner to whom you are engaged  and have ongoing support of your family and friends. You have no issues with substance abuse. Prior to your remand, you maintained consistent employment and have demonstrated a very strong work ethic. I have had regard to all the references that speak of your positive qualities and suggest that this offending was out of character. Ms Cidoni has assessed your risk of re-offending as low.[20] I am told that you have found the court process highly distressing and it will no doubt be a salient reminder not to commit any further offending. Upon your eventual release, you will return to a loving relationship with support from family and friends.

[20]According to Ms Cidoni’s addendum report dated 23 July 2023, the subsequent matters have not affected her risk assessment.

44You were first spoken to by the police in November 2019 and charged in May 2020. Largely due to the pandemic, your trial did not commence until March 2023. This matter has been hanging over your head for some three years. I further accept that this delay would have caused you ongoing uncertainty and anxiety amounting to some additional punishment.

45You were remanded in custody following the verdicts on 15 March 2023. You have utilised your time in custody as productively as possible. You have completed a number of short courses, including parenting programs and courses relating to healthy relationships.[21] You have been working, manufacturing number plates.

[21]Exhibits 12 and 16 – bundle of certificates.

46Following three miscarriages, your partner gave birth to your son on 14 April 2023. Your remand in custody meant you were absent at the time of birth. You have not been able to support your partner at a time she needs support, both emotional and financial. I accept not being there for your partner and newborn son has caused you and will continue to cause you much anguish and make your time in custody more burdensome.[22] In addition, you have had no access to your two children with Ms Carpenter and are resigned to the fact that you are unlikely to be part of their lives at least until they are adults.

[22]I note Ms Cidoni’s diagnosis of an Adjustment Disorder with anxiety and depressed mood and the matters in [37] of her initial report.

47I was told that your partner and son have been visiting you every Sunday. You have also received visits, both in person and virtually from other family members, including your mother. 

Sentencing

48On your behalf, Mr Cameron conceded that a term of imprisonment involving a non-parole period was inevitable. He accepted that the principles of general deterrence, denunciation and just punishment loom large in the sentencing exercise. Mr Cameron submitted that your youth at the time of the offending, and your positive progress during a lengthy period of delay, allowed the Court to give reduced emphasis to specific deterrence and protection of the community. While he conceded that cumulation between the two charges was appropriate, he reminded me to bear in mind the principle of totality.

49I have considered the sentencing snapshots for the offence of rape between 2011 and 2016,[23] as well as the sentencing cases for rape placed before me by Mr Cameron.[24]

[23]The limited utility of sentencing snapshots is recognised.

[24]R v GJ [2008] VSCA 222; Johns v The Queen [2016] VSCA 97; Samuels v The Queen [2019] VSCA 14; Samuels v The Queen [2018] VSCA 251; Flynn (a pseudonym) v The Queen [2020] VSCA 173.

50On behalf of the prosecution, Ms MacDougall took no issue with the matters submitted on your behalf in mitigation. She emphasised the factors relevant to the seriousness of the offending already highlighted in these reasons.

51Having taken into consideration all relevant sentencing factors and principles,[25] Mr Stewart, you are sentenced as follows:

[25]Including all the plea material tendered.

52On Charge 1 of rape, you will be convicted and sentenced to 5 years and 9 months’ imprisonment.

53On Charge 2 of rape, you will be convicted and sentenced to 6 years and 3 months’ imprisonment.

54Charge 2 will be the base sentence. 15 months of the sentence on charge 1 will be served cumulatively upon charge 2. This makes a total effective sentence of 7 years and 6 months’ imprisonment.

55Bearing in mind your youth at the time of the offending, and whilst recognising your limited subsequent offending,[26] your generally positive progress over a number of years, I will set a non-parole period of 4 years and 6 months’ imprisonment.

[26]Relevant to rehabilitation.

56For completeness, I note that the reporting requirements under the Sex  Offenders Registration Act 2004 are discretionary. Quite rightly, no submission was made by the prosecution that I should consider registration.

Pre-sentence Detention

57Pursuant to s 18 of the Sentencing Act 1991, the period of 232 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.