Director of Public Prosecutions v Sumner

[2024] VCC 1805

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-24-01372

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY SUMNER

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2024 and 27 November 2024
DATE OF SENTENCE:	28 November 2024
CASE MAY BE CITED AS:	DPP v Sumner
MEDIUM NEUTRAL CITATION:	[2024] VCC 1805

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW - SENTENCE
Catchwords:             Rape
Legislation Cited: s 38(1) Crimes Act 1958 (Vic); s 5(2G) Sentencing Act 1991 (Vic);

Cases Cited: DPP v Mokhtari (2020) VSCA 161; IBBS v The Queen (1987) 163 CLR 447; Bugmy v The Queen [2013] 249 CLR 571; DPP v Dalgliesh (a pseudonym) (2017) ALJR 91.

Sentence:                 Five (5) years imprisonment with a non-parole period of three (3) years.

6AAA - Seven (7) years with a non-parole period of five (5) years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Chan	Office of Public Prosecutions
For the Accused	Mr C. Tom	Victoria Legal Aid

HIS HONOUR: 

1In the matter of Cody Sumner, which proceeded as a plea before me in the County Court sitting at Bairnsdale, Mr Sumner pleaded guilty to one count, being a rolled up charge of rape, pursuant to s 38(1) of the Crimes Act1958 (Vic).

2The matter was adjourned to yesterday for further plea.  Mr Nicholas Batten appeared at the plea on behalf of the Director and appeared yesterday and Ms Chan appears today, and Mr Christian Tom has appeared for Mr Sumner throughout.

3The maximum sentence for rape pursuant to s 38 of the Crimes Act is
25 years' imprisonment. This charge is subject to the standard sentencing provisions. The standard sentence prescribed is 10 years' imprisonment and pursuant to s 11A of the Sentencing Act1991 (Vic), the standard non-parole period is prescribed.

4The prosecution filed Exhibit A, being the prosecution opening for plea, which was accepted by Mr Tom as being the facts upon which I am to sentence his client. The prosecution also filed the victim impact statement of Sarah Henderson[1] dated 8 October 2024, and yesterday were tendered as Exhibit C two further statements of Ms Henderson, one dated 11 October 2023 and a second 15 October 2024.

[1] A pseudonym.

5The defence filed an outline of submissions, Exhibit 1, which included comparative cases and Exhibit 2, a psychological report dated 29 August 2024 by Mr Simon Candlish, consultant psychologist.  Yesterday Exhibit 3 was filed by the defence being the clinical neuropsychologist report of Dr Fratti, dated 24 November 2024.

Circumstances of the offence

6As detailed in Exhibit A, the rape occurred somewhere between 4.30 and 5.30 am on 14 October 2022.  The rolled-up charge involves three penetrations which are detailed respectively in [23] and [24] of the opening and involve Mr Sumner penetrating Ms Henderson's vagina, firstly from behind, then while on top of her, and then thirdly from behind, when she had turned on her right side, when he then ejaculated into her vagina without using any contraception.

7The victim impact statement read by the prosecution and signed by
Ms Henderson, indicates that the circumstances surrounding the rape have continued to affect her.  Initially she had to move from where she lived, having felt 'targeted'.  Further, because of post-offence trauma, she could not work for a long time thereafter and eventually moved to Melbourne.  Albeit a fresh start, to the day of the signing of the victim impact statement she still struggles to leave home on her own and with meeting new people.  Finally, she states that she does not think she will ever be able to rid herself of how the crime has affected her.  I thank Ms Henderson for providing such statement for consideration of the Court.

8Rape is a category 1 offence and pursuant to s5(2G) of the Sentencing Act1991 a period of gaol must be imposed for such offence.

Factors leading up to the offence

9As detailed in the prosecution opening, Ms Henderson had known Mr Sumner for some time.  Ms Henderson started to 'hang out' with him following a weekend where she was staying at his sister's home, on 1 October 2022.  Mr Sumner apparently expressed interest in her, leading to him sleeping in a bed with her on two nights at his sister’s premises and cuddling her.

10Exhibit C contains two statements of Ms Henderson and refers to a series of text messages, Exhibit 4 of the depositions, between the parties, leading up to when Ms Henderson came to stay with Mr Sumner and indeed slept with him from 8 October 2022 to the day of the offence, six nights.  Ms Henderson was apparently dealing with issues from a prior boyfriend and on 9 October 2022 in Snapchat messages, had indicated to Mr Sumner that while she was sleeping with him, that cuddles were allowed, and that there was to be no sex.[2]  Further, at p198 of the depositions Ms Henderson stated that she did not want sex, which Mr Sumner acknowledged.  Indeed, she went on further at p202 of the depositions to say she did not want sex with anyone.  She finally stated on Snapchat comments that cuddles would be perfect as long as she continued to stay with him.[3]  During this time, while in bed together on one occasion, she had woken up with Mr Sumner trying to take her underwear down.

[2] See p197 of the depositions

[3] See p201-202 of the depositions

11On 14 October 2022 between 4.30 and 5, Ms Henderson woke up to
Mr Sumner pulling her shorts down.  She was half asleep.  He then pulled her underwear down.  She wondered at the time if it would have been simpler to let him have sex, [21] of her statement of 15 October, Exhibit C.  Albeit that she told him she did not want to have sex, he eventually pulled her underwear off and placed his penis inside her vagina from the rear.

12Mr Sumner then apparently rolled the victim onto her back and penetrated her vagina again for some seconds, with Ms Henderson then pushing him away with her hands and knees, and subsequently he again from behind inserted his penis into her vagina and ejaculated.

Post-rape

13Ms Henderson almost immediately emailed a friend of hers indicating she thought she may have been raped.  She subsequently left and went to a friend's place and ultimately that day spoke to her father.

14At that stage, she was also texting Mr Sumner.  At 7.29 pm she said to him 'How could you not know what you did' and he responded 'Is it with you saying no'.  He apologised and she responded 'sorry ain't gonna cut it'.  She then said at p235 of the depositions, 'That kind of shit can get you in heaps of shit.  I said no and I told you to stop.  You continued to do it anyway, that's why I left'.

15Ultimately, after discussing what was her intent, and the role of her father,
Mr Sumner stated to her: 'I'm honestly sorry.  I did it.  I should have just cuddled you and not went there'. (p268 of the depositions)

Record of interview

16It is difficult to quite put the timing of these matters together however, the record of interview purports to have been made on the day of the rape at 12.09 pm.  Albeit given warnings, Mr Sumner was not able to make contact with the Victorian Aboriginal Legal Aid Service, nor did he seek to talk to a solicitor.  As he said in Question and Answer 26, 'I am just planning on telling the truth'.  In fact he said at Question and Answer 225 the following:

I was cuddling her and then yeah, I thought she might have wanted one.  She didn't back away or anything.  Like, I did pull down her underwear.  She like didn't really put much effort into stopping me with that but yeah, she didn't pull away when I was, when I went to go at put it in or anything.  She just yeah, all she said was 'no' and that was it.  Normally someone would pull away and try to get away, so but that's what's confused me. Why would you say that … I got confused this morning.

17Considering the seriousness of this charge, it is concerning to the Court, despite the admissions obtained, that the police proceeded to interview
Mr Sumner without him having legal advice or being able to seek assistance from the Aboriginal Legal Service.

Mr Candlish, psychologist

18The conclusion reached by Mr Candlish in his report (Exhibit 1, [107]) as to the rape was that:

… Mr Sumner also seemed to misinterpret the victim's behaviour prior to the offence and persisted with offending due to impaired perspective taking, and impaired empathy and a focus of his own sexual needs, despite the victim indicating that she did not wish to engage in sexual activity.  He does appear to have been aware that his behaviour was wrong …

19Mr Candlish went on in that paragraph to suggest that Mr Sumner had justified to himself that the victim was providing consent.  I do not accept that statement from my observation of his immediate remorse and statements made to the police. This conclusion is complicated by the further report from Dr Sara Fratti (Exhibit 3) suggesting in Mr Sumner a lack of empathy, and a further suggestion by Mr Sumner of blame of the victim and even a deliberate set up.  I consider however my original conclusion was correct, and what Dr Fratti is detailing is really post-offence speculation by Mr Sumner, who has said to Dr Fratti at [33], 'I don't really know, I don't know what is real anymore.'  Given his psychological makeup, such words strike me as having the ring of truth.

20It is to be noted of course that the rape in this case is aggravated by the fact that a condom was not used.  Albeit that in the record of interview at Question 335 Mr Sumner refers to being aware that Ms Henderson had what he describes as a 'rod' contraceptive.  Such contraceptive device of course does not protect a person from disease.

Criminal culpability

21On the basis of the facts as described and accepted by Mr Sumner's counsel, I find the offending here to be objectively serious.  Both because of the inherently serious nature of such offence demonstrated by the maximum penalty prescribed by Parliament, and the factors referred to by the Court of Appeal in DPP v Mokhtari (2020) VSCA 161, [41] and [43], and the obvious consequences which have been detailed by the victim in her victim impact statement.

22Based upon the principles detailed by the High Court in IBBS v The Queen (1987) 163 CLR 447 at [452], on the scale of heinousness, at the spectrum at one end of which lies the worst type of sexual assault, I would place this at mid-range.

Defendant's plea

23Mr Tom put to the Court the following mitigatory factors:

i.The early resolution of this matter at committal mention;

ii.The plea of guilty

Mr Sumner's acceptance of guilt and the remorse expressed from a very early stage in the discussion with both the victim and the father of the victim (see 289 of the depositions) where he effectively admitted the crime to the father, Mr Sumner said 'I had better start packing'.  I have already referred to the record of interview in which he made clear admissions, which was conducted ostensibly on 14 October 2022 at 12.09 pm.

iii.The valuable plea

The defence put that the plea made by Mr Sumner of guilty to a charge of rape as being in the circumstances, a very valuable plea.  This is accepted by the prosecution.  The plea is valuable because it is utilitarian, in particular in this case in that it saves the victim from giving evidence in a trial.  I find it also reflects remorse, demonstrated by Mr Sumner almost immediately from the happening of the rape.  It should also be remarked that a plea of guilty to rape in this Court is an unusual circumstance.  Given the maximum sentence, no doubt accused persons are often advised to put the prosecution to its proof.  As put by Mr Tom, other persons may well have run this case, given the background and the particular circumstances surrounding the happening of the integrals.

iv.Delay 

Albeit the admissions made from the day of the happening of this rape, Mr Sumner was not charged with the offence till 14 October 2023.  It was ultimately listed for plea at a committal mention on 14 August 2024.  Throughout that time and up until the plea was effected, Mr Sumner has maintained his plea, continued to work diligently, and changed his lifestyle, in particular in regard to the consumption of liquor.  During such period, he has had this day hanging over him. I refer to the diagnosis of depression post offence, and the observations, as referred to by Mr Tom in further submission yesterday, of Mr Sumner's sister, as detailed in [37] of Dr Fratti's report, as to her observation of Mr Sumner's decline in mood, his withdrawal and forgetfulness since such offending.

v. No prior offences of any sort.

vi.He has a hardworking background despite the difficulties in his upbringing. Not only has he not been involved in any criminal activities to this date, he has been able to successfully complete his Year 12 and has essentially worked as a farm labourer full time from that time.

vii.Socially immature

As I have already stated, and as detailed in Exhibit 2, Mr Candlish said that Mr Sumner presented with strong signs of cognitive compromise.  Since the offending he has suffered a persistent depressive disorder with anxiety and feelings of low self-worth.  Mr Candlish remarked that there were strong signs of cognitive compromise.

viii.Indeed, the plea was adjourned for the purpose of a neuropsychological report.  Exhibit 3, tendered yesterday, Dr Fratti's neuropsychological report dated 24 November, demonstrates there to be no cognitive compromise.  Dr Fratti found:

(a), a confirmation of an unstable upbringing in his formative years and issues thereafter with alcohol and binge drinking [65];

(b), that Mr Sumner has no intellectual disability [73];

(c), there is no significant alcohol induced brain injury [74];

(d), that he has an IQ in the very low to low average range of 77 [52];

(e), that he has a cognitive profile characterised by reduced vocabulary and difficulties in discourse [75]; and

(f), that post offence he has developed a major depressive disorder of moderate severity.

24As demonstrated in Bugmy v The Queen [2013] 249 CLR 571, [37], such a disturbed background during one's formative years must always be considered by Courts when sentencing offenders. I give full weight to such requirement. However, such must be only of moderate effect here as his commission of this crime relates not so much to an inability to control an impulse to act, and which therefore may impact on weight ordinarily given to general and specific deterrence, but in this instance more to confusion produced by his cognitive profile. I am satisfied that there should be a moderate reduction in weight as to personal and general deterrence in favour of rehabilitation.

25In regard to all those factors, I take the totality of such matters into account in mitigation of this sentence.

Findings

26I must say that I found this case a difficult sentencing exercise.  There appears to be a naiveite about Mr Sumner, from the manner in which he admitted the rape, his acceptance of guilt once he was confronted with the allegation that very day, and how he appears to have rationalised such criminality since.

27The background of the crime was that the victim was sleeping with him for at least eight days prior.  I am convinced that Mr Candlish's view as to
Mr Sumner's lack of psychological sophistication, perception and distorted views, have led to the rape despite the victim having indicated clearly that she did not want to have intercourse.

28I have had to sentence Aboriginal people in this Court on many occasions.  Indeed, I sit in the Koori Court.  Many of those persons, as in Mr Sumner's case, are marked with a background of traumatic and unstable circumstances in their formative years.  I think Mr Candlish's comments as to the misinterpretation, impaired perspective and empathy, and a focus on his own sexual needs are the background to how Mr Sumner allowed himself to commit this crime against a person who he described to the victim's father that he had:

… treated her like gold until I did this one fuck up, the biggest mistake I've ever make [sic] apart from being born, but I'm honestly sorry again.  If I could take it back what I did, I would.  I understand I deserve to end up in a body bag.  Sorry for saying about my head being fucked with the stress, it's not an excuse.  I know it's not going to cover me.  But I know I fucked up big time.  I'm truly sorry sir.

29This background, is further confirmed, as is my conclusion about the role it played in this crime, by Dr Fratti's opinion.  In that regard I want to quote from [83] to [85] of her report (Exhibit 3) where she says:

Mr Sumner's conditions did not preclude his ability to understand the wrongfulness of his actions after the fact, but they likely have affected his ability to think clearly, make reasoned decisions, interpret the victim's intentions and control his behaviours at the time of offending.

30And then at [85] as follows:

In summary, the interplay of his conditions may have partially impaired his interpretation of the victim's signals and his ability to fully grasp the wrongfulness of his actions at the time, or prior to the offence.

31I then come to a consideration of the Verdins principles and these arise from the evidence of Dr Fratti. They are such as to mean that principles 5 and 6 must be taken into account in this sentence.  Insofar as principle 5 is concerned, I quote from [86]:

The communication difficulties associated with language disorder could lead to significant challenges in navigating the social environment of prison.  Difficulty understanding and expressing himself might make it harder for Mr Sumner to engage in important interactions, such as with Correctional staff, legal representatives or fellow inmates.  The inability to effectively communicate may increase stress or exacerbate feelings of alienation in the prison environment.

32Then as to principle 6.  I read from Dr Fratti's [87], which says as follows:

As to his depression, in a highly structured and sometimes punitive environment like prison, his lack of emotional resilience may lead to feelings of hopelessness and withdrawal.  The social isolation commonly experienced in prison could also deepen depressive symptoms making it harder for him to cope with daily stressors, form supportive relationships or engage in rehabilitative programs that may otherwise aid in coping.

33Mr Sumner is entitled to individualised justice and the imposition of a just sentence based upon the facts of this case, see DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 at [49].

34Insofar as the cases handed to me by counsel, I indicate that I have considered such cases and applied relevant sentencing principles to be in a position to identify boundaries, marking the range of which this particular sentence must fall, including of course the fact that this is subject to a standard sentence.  Up to that point of course the exercise is largely objective, but with an element of the subjective introduced by the produce of instinctive synthesis, (see Hassan v The Queen (2010) 31 VR, at [44]-[49]).

35Insofar as the standard sentence of 10 years is concerned, I take such into account in the manner as prescribed by Brown v The Queen (2019) 59 VR 462 and assess the seriousness of this offence in the conventional way, taking into account both objective gravity and moral culpability.

36As to sub-s5A(1b), s5B(2)(a) and (2)(b), I take such into account in the sentencing process as legislative guideposts, noting the narrowness of the definition of objective factors insofar as the concept of middle range seriousness is concerned, and the inevitable imprecision of the notion of a hypothesised mid range offence.

37Mr Sumner, would you be good enough to stand please.

38Taking account of all the factors that I have rehearsed, for the crime of rape of Sarah Henderson you will be sentenced to imprisonment for five years.  Pursuant to the provisions of s11, I order that you serve three years before being eligible for parole.

39As to the requirement of s5B(5), I indicate that I have taken into account the standard sentence and the factors set out in s5A(3) thereof, objective factors relevant to the assessment of culpability, subjective factors and the personal factors relevant to Mr Sumner, together with the concepts detailed in s5 of the Sentencing Act1991, in imposing the above sentence. In such sentence I utilised as one of the guideposts the standard sentence.

Section 6AAA

40Had Mr Sumner not pleaded guilty, the sentence I would have imposed upon him would have been a period of imprisonment of seven years with a non-parole period of five years.

41Any matters I need to clarify?

42MR TOM:  There is just the one day of PSD, Your Honour.

43HIS HONOUR:  Sorry, and I declare that the one day served from yesterday by way of pre-sentence detention be declared as pre-sentence detention and noted in the records of this Court.

44Thank you both for your assistance in this matter.  Good luck, Mr Sumner.

45COUNSEL:  As Your Honour pleases.

46HIS HONOUR:  Thank you.  Mr Sumner can be taken away.  Can I thank both counsel and their instructors, for what I think obviously as indicated in my sentencing remarks, was a matter that was not easy.

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