Director of Public Prosecutions v Tate (a pseudonym)

[2019] VCC 1786

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN TATE  (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2019
DATE OF SENTENCE:	30 October 2019
CASE MAY BE CITED AS:	DPP v Tate (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1786

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McVean
For the Accused	Mr A. Lewin

HIS HONOUR:

Introduction:

1Mr Tate[1], you came before me on 20 September of this year and pleaded guilty to three charges of rape, one charge of aggravated burglary and one charge of false imprisonment.  Two of the charges of rape each represented two occasions of rape.  These offences were committed against the same victim on the same day, namely 9 November 1986.

[1] ‘Lachlan Tate’ is a pseudonym.

2During the hearing on 20 September, I was told that at the time of your commission of these offences in 1986, the maximum penalty for aggravated burglary was 15 years' imprisonment, for rape was ten years' imprisonment and for false imprisonment there was no maximum penalty. I intended to sentence you on the adjourned date.  However, on the day before, the Crown gave notice of its intention to argue for a higher maximum penalty on the charges of rape.  You have heard the argument.  I accept the Crown's argument that I should sentence you for rape with aggravating circumstances of a maximum penalty of 20 years' imprisonment and I will give you these reasons in relation to that aspect.

3Section 46 of the Crimes (Sexual Offences) Act of 1980 deals with four offences and specifies when there are aggravating circumstances.  In sub-s.1, the circumstances are directly connected with the commission of the offence. 
If one or other of those circumstances is present, then there are aggravating circumstances. Sub-s.3, 4 and 5 are different.  If a person is found guilty of one of the four offences and has previously been convicted of one of those offences, then a judge may, not must, direct that the entry on the records show that the person is guilty of the offence with aggravating circumstances.  If such an entry is made, the person is deemed to have committed the offence in aggravating circumstances.

4The existence of the discretion to direct an entry on the record is a function of the circumstances underlying the previous conviction and those underlying the current offence or offences.  For example, the previous conviction may have been for a relatively minor indecent assault and the current offence may be for rape.  Those two circumstances, coupled with other relevant circumstances may lead a judge not to direct an entry on the record.

5In your case, my decision is straightforward.  The 1979 rape was very serious.  The 1986 rapes were also very serious.  The considerations raised by your counsel pale into insignificance compared with those considerations. 

6Consequently, I will direct the entry and sentence you on the basis that you are guilty of rape in aggravating circumstances where the maximum penalty is
20 years' imprisonment.

7At the time of these offences, you were 31 years old.  You are now 64 years old. 

8Although I have spoken of the single victim, there was another person affected by your offences, one of the two sons of your victim.  Your victim,

[2] ‘Ms Hailes’ is a pseudonym.

[3] ‘Christopher’ is a pseudonym.

Ms Hailes[2], was then 26 years old and her son, Christopher[3], was then eight years old.

Circumstances

9You met Ms Hailes while you were in prison serving a sentence and she was visiting her husband, who was also serving a sentence. 

10After your release from prison, you started a sexual relationship with Ms Hailes.  You visited her in her unit in Hawthorn and met her two sons.  Your relationship ended with Ms Hailes in 1986 and she moved to an apartment in Box Hill.

11In the early hours of Sunday, 9 November 1986, you entered Ms Hailes' apartment by cutting the flywire screen of the kitchen window.  You did so with the intent of committing an offence involving an assault to a person.  Ms Hailes and her children were in the apartment asleep.  Ms Hailes was in her bed with her son Christopher.  The other boy, aged two years, was in his cot in another bedroom.  Your entry into the apartment in those circumstances constitutes Charge 1, which is aggravated burglary.

12You woke Ms Hailes when you put a hand over her mouth and a garment over her head.  Your face was covered, so she could only see your eyes and some of your hair.  She struggled and tried to slide away.  She said:  'What do you want?  Don't hurt me.  I'll do anything you want, but don't hurt me.'  You said:  'Shut up and don't move.'  Christopher woke up.  Ms Hailes yelled at him to go out the front door, but he refused.  Ms Hailes and Christopher were now screaming.  

13You grabbed Christopher and took him to the room where his brother was sleeping and shut the door.  Christopher was so scared he did not resist.  However, he recognised your voice, apparently.

14Ms Hailes then begged you not to hurt her, saying:  'Don't hurt me, I've got two kids.'  You said:  'If you shut up, I won't hurt them.'  She was lying on her stomach and felt something jab her in the back.  She thought you had a knife, but did not see one then.  You said:  'I'm going to rape you.'  You undressed.  You positioned Ms Hailes in a seated position at the end of her bed.  You put your penis into her mouth and pulled her head onto it.  You pushed your penis in and out of her mouth.  These events, or last events, constitute Charge 2, being rape and the charge represents two occasions of you inserting your penis into her mouth.

15You then removed your penis from her mouth, pushed her back onto the bed, got on top of her and put your penis into her vagina.  This constitutes Charge 3. 

16You then rolled her onto her stomach so that her knees and lower part of her legs were hanging off the bed. You positioned her buttocks and put your penis into her anus.  This constitutes Charge 4, being rape and it too represents two occasions of you putting your penis into her anus.

17You then dragged her to her feet, pushed and pulled her into the bathroom and located a jar of Vaseline.  You then pushed and pulled her back towards the bedroom, pausing on your way to look into the children's bedroom. 

18Ms Hailes tried to escape from you by running towards the front door. However, you chased and pulled her away from the door.  She fell to the floor and then you struck her to the head and face multiple times.

19You dragged her back to her bedroom. You positioned her in front of the full length mirror, you stood in front of her and put your penis into her mouth.  You used the mirror to see your and her reflection in it.  You pushed your penis down really hard into her throat.  She felt like she was going to choke.  You then said:  'Lick my balls.'  She did so while you held her head.  This is the second occasion comprising Charge 2, which is the charge of rape.

20You then placed her on her stomach on the bed, rubbed Vaseline on her anus and inserted your penis into her anus for about two minutes.  Ms Hailes was too frightened to think about the pain and this constitutes the second occasion of Charge 4, namely rape.

21You then got off her, saying you needed to go and see someone.  She was terrified, because she believed you intended to hurt her son.  You told her not to move.  Using two pillowcases from a nearby basket, you tied her hands and ankles together.  You then put a heavy blanket around her head.  She thought she would suffocate and you would stab her.  She was terrified.  These events constitute Charge 5, being false imprisonment.

22You then put a hand on her back and said:  'Don't do anything, or you're dead.' 

23You then left by the back door and drove away.  Ms Hailes heard you leave and the sound of the car driving away. 

24She screamed out to Christopher.  He undid the pillowcases.  She dressed and went next door and told her neighbour she had been raped. 

25On her return to her apartment, she found a knife, being the one you possessed.

26As one would expect, Ms Hailes suffered physical and mental injuries.  Her physical injuries were swelling and deep bruising to the right eye, both cheeks, upper lip and around her mouth.  She received abrasions on the inside of her lip and scratch marks on her face.  There were red marks and indentations on the back of her neck and down her back.  She experienced pain in her right arm, left shoulder and right breast.  Her left thigh and knee were bruised.  There was a four centimetre scratch on her stomach.  There was a small amount of perianal redness and a very small fissure in the interior margin of the anal fold. 

27She was forensically examined at a hospital.  Your sperm was found in her rectum and urethra.  In 1986, it was not possible to analyse sperm to identify your DNA.

28The investigating police did not identify any suspects then and the case was filed away. 

29In 2018, a review of the file disclosed a handwritten note with your name as a suspect.  When asked by the police in August 2018, you provided a sample for DNA analysis.  You did this voluntarily. 

30Following a further statement from Ms Hailes, you arranged with police to be arrested at your home on 18 December. Again, you provided another sample voluntarily. On analysis, your semen was present.

31During your interview with the police, you said you had no memory of committing these offences due to the effects of drugs you were then taking.  You also told police you would plead guilty to charges, because you did not want to put Ms Hailes through the ordeal of a trial.

32You indicated an intention to plead guilty at a committal mention on 17 May of 2019.  I have treated these pleas of guilty as being made at the earliest reasonable opportunity.  They relieve Ms Hailes and her son Christopher from giving evidence about the dreadful events of that night.  It has spared others from giving evidence.  It is also one of the indications of your remorse for your actions.  From the moment you were approached by the police in 2018, you gave them every assistance in their investigation of your crimes.  You gave freely two samples on which DNA analysis was undertaken, which proved to be critical evidence of your guilt.

33An important aspect of your case is that 33 years have elapsed since you committed these offences.  This period has enabled two things to happen. 
First, Ms Hailes and her son Christopher have told of the effects of your crimes upon them over the period of 33 years.  Second, you have used those years to be of good behaviour.

34In terms of court appearances, your criminal record is limited.  Apart from an appeal to the County Court, you appeared in a court on seven occasions, with four of those in the Children's Court.  In October 1973, on appeal, you were sentenced to seven months' imprisonment for seven charges of larceny of a motor vehicle and a charge of unlicensed driving.

35More importantly, you were sentenced in the County Court for rape to seven years, with a non-parole period of five years and that occurred in 1979. 

[4] ‘Mitchell’ is a pseudonym.

The Crown has provided me with copies of the charges, the statement of the victim, your niece, who was then aged 11, your brother Mitchell[4], his girlfriend, a police surgeon called Dr Bush, the police informant and your record of interview with the police. 

36Dr Bush examined the victim the following day.  He saw a pale, shocked little girl, who was on an intravenous drip.  His most notable finding, apart from those, was a half-inch laceration to the perineum, which was the equivalent to a second-degree tear. 

37It was the continued bleeding of your victim which caused your brother Mitchell to drive her to the emergency department of the Royal Children's Hospital.

Ms Hailes

38Ms Hailes made a victim impact statement.  She and her children left their
Box Hill flat immediately after the crimes.  They struggled to find somewhere to live.  Ms Hailes’ mother and aunt started to care for the children, because she could not.  This has affected her relationship with her entire family.

39Your crimes left Ms Hailes very fearful of her safety wherever she lived. 
She was very watchful, both at home and outside of her home.  Wherever she lived, she would check whether the doors were locked, sometimes up to three or four times during the night.  Even now, after 33 years, she is very watchful about her safety and that of her children.  She is still anxious.

40Ms Hailes was very angry about being violated in her home.  Her sleep became very disturbed. For many years afterwards, she did not want to go to sleep and would stay awake until about three in the morning.  She still sleeps in this way.

41The resumption of the police investigation in 2018 has brought back many of the anxieties she felt after these crimes. 

42She was left without money after moving following the incident.  She moved many times to rental properties and finally she obtained what she described as a government house.  The regular moves affected her children as they went to many schools.

43Following the crimes, Ms Hailes found difficulty making friends and this is still the case. 

44She still feels ashamed and violated. 

45Her life has changed forever because of these crimes; she has never felt she is the same person she was before. 

46It is clear that these crimes have had a profound effect on Ms Hailes.  After 33 years, it is safe to conclude that they will affect her indefinitely.

Christopher Hailes

47Christopher Hailes has also made a victim impact statement.  He was eight years old at the time. 

48Christopher remembers being dragged out of his mother's bed and a hand placed over his mouth. He could not breathe.  He was taken to his brother's bedroom and told to remain there, which he did out of fear.  He was very scared for his safety and that of his mother. 

49The family moved quickly after the crimes and stayed with his grandparents.  The house was crammed with people and this caused arguments. 

50The family, he recalls, moved from home to home and he went from school to school.  These changes unsettled Christopher because he had to make and then remake new friends at each school. 

51Changing schools affected his primary and secondary education. He left school after Year 10. 

52From Christopher's perspective, his mother's family treated them differently because of your crime.  He felt that they became, as he put it, the “black sheep” of the family. 

53Because his mother became very protective of him, it changed the way he related to friends.

Personal details

54Apart from these offences, you have not been found guilty of any offence since 1979.  Although the offence committed by you in 1979 was very serious, you were released on parole in 1982.

55You are now single.  You have two children, a son and a daughter.  You have contact with your daughter but not with your son. 

56You are the second of five children and you have four half-siblings from your mother's previous relationship.  Only your older brother, Hamish[5], survives amongst your siblings.  He lives in Queensland and is the owner of the premises where you live.

[5] ‘Hamish’ is a pseudonym.

57Your father was an alcoholic.  He inflicted severe violence upon your mother and assaulted you.  When you were 11 years old, you were found guilty of two offences of breaking and stealing and were committed to the care of the Social Welfare Department. 

58Your early education was then conducted at St Augustine’s Boys’ Home in Geelong, followed by a few years at the East Geelong Technical School.

59While at St Augustine's, you were sexually abused by Brother Houston and physically abused by others.  The sexual abuse by Brother Houston included an instance of rape.  This occurred when you were 15.  Afterwards, you fought back against this brother. The overall abuse occurred to you over a period of four years.

60You left St Augustine's at the age of 15.  You spent time at the Morning Star Boys' Home and two periods of 12 months' detention at another boys' home.  At 17, you spent seven months in Pentridge Prison.  Fortunately, you were kept away from adult prisoners.

61You left that prison at the age of 18 and obtained work in a supermarket. 
You had various short-term jobs until you were 28 years old when you obtained a forklift licence.  You remained employed until 2016 when the effects of a neck injury forced you to stop work.  The neck injury had been received years earlier in a motor vehicle accident.  You now receive a disability support pension.

62After leaving prison, you were introduced to marijuana by one of your brothers and became a very heavy user for about 20 years.  You also used benzodiazepine for many years as you struggled to sleep following your experiences at St Augustine's. 

63During 2016, you reported the sexual abuse to an organisation called “Towards Healing” and started counselling with the Southern Centre Against Sexual Abuse. 

64Towards Healing arranged for a psychiatrist, Zeeva Cohen, to assess you and she saw you on 6 December 2018.  I have read her report, dated
21 December 2018. 

65You told Dr Cohen of your isolation where you are now living, spending 20 hours each day in your room, mainly watching television, your only enjoyment in life being your daughter.  You lack friends, hobbies or interests.  You have not used drugs for 10 or 11 years.  You drink two or three glasses of wine most nights, as you put it, “to take the edge off”.

66You told Dr Cohen of your unsuccessful suicide attempt in 1983 after learning of your mother's cancer condition.  You resist such thoughts now. 

67You were prescribed lithium by a psychiatrist in the late 1980s and took it for 20 years.  You had a hip replacement in 2010 and still experience back pain due to the misalignment of your hip for many years.

68Dr Cohen noted considerable setbacks in your life: your violent father; the sexual and physical abuse, principally at St Augustine's; and the limited academic achievement related to your sexual abuse; the death of your mother; the suicide of one of your brothers, who had experienced similar sexual abuse; the breakdown of two physical relationships; and physical difficulties.

69Dr Cohen diagnosed you as suffering from persisting depressive disorder with two major depressive episodes, one in 1983 and the other when she saw you.  She also diagnosed you as suffering from substance abuse disorder but it was in remission. The substances included alcohol, marijuana and benzodiazepines.

70Dr Cohen saw the abuse of Brother Houston as materially contributing to your psychiatric conditions, noting the abuse was violent, penetrative and occurred over a long period and at a developmentally vulnerable age. 

71Dr Cohen said you were then in need of psychiatric treatment and recommended a particular antidepressant medicine together with counselling.  With appropriate treatment, she thought your prognosis would be reasonable.

72I do not know whether the medicine was prescribed.  It seems unlikely you are taking any antidepressant medicine because the only medicine you took was Panadol Osteo for your neck pain.  However, you attended a psychologist, Kim Dowse, on four occasions.  She said you engaged well in therapy and expected rapid progress if you continued to attend.

73David Ball is a psychologist.  At the request of your solicitors, he saw you on 3 July and again on 21 August of this year. 

74Your solicitors gave Mr Ball a copy of your criminal history and the report of Dr Cohen.  He knew of your previous conviction for rape, noting in his report:

'Mr Tate acknowledged prior offences, including a previous conviction for rape which he explained in the context of substance.  He said "It's similar to this one.  I woke up thinking it was a bad dream.  I soon found out it was worse."'

75You expressed remorse to Mr Ball for the current offences.

76Mr Ball adopted the diagnoses of Dr Cohen and Dr Cohen's view of your personal functioning. 

77He looked at your risk of sexual re-offending, which he said was a function of two matters, which he described as stable and dynamic or situational risk factors. The former, that is, stable, are more difficult to change.  The latter are capable of reduction with treatment and other interventions. Applying an actuarial tool called Static-2002R to assess the stable risk factors, he considered you to be of low risk of recidivism relative to other male sex offenders.  

78Mr Ball then discussed the dynamic risk factors concerning you. 
He noted features of your lifestyle which increases the risk of you re-offending: that is your socially isolated lifestyle; the nature of your offending in 1986; and your history of substance abuse.  He noted your attendance upon the psychologist, Ms Dowse, and your openness to her. As to treatment and other interventions, he identified as the main protective factor to be applied to you would be the successful completion of the sex offender treatment programme, which would develop your understanding of the effects of sexual abuse upon Ms Hailes and non-consenting victims generally.  I daresay this programme will be offered to you in prison and I daresay you will undertake it and do so successfully.

79Mr Ball did not combine his views of overall risks for both risk factors.  I am left with his assessment of low risk or stable risk factors and an ambiguous view of the dynamic risk factors.  Overall, my impression of his views are that you will be a low risk once you are released from prison.

80Pausing there, the prosecutor submitted I should reject Mr Ball's view of the likelihood of you re-offending because he did not know the circumstances of you raping your niece in 1979.  I daresay he did not, for he does not mention the circumstances and no document was given to him setting them out.  However, I do not know for the purposes of his assessment whether it was necessary for him to know.  I do not know whether the absence of that knowledge creates an unfair climate for his opinion.  I cannot then reject his opinion on that basis, being the one submitted by the prosecution.

Sentencing

81It is agreed by your counsel that I am to sentence you on Charges 3 and 4 as a “serious sexual offender”.  This has these consequences for you.  First, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.  Second, I may, in order to protect the community, impose a sentence longer than that which is proportionate to the gravity of your offences inserted in the light of their objective circumstances.  The Crown does not submit such a course should be taken by me in your case.  Third, every sentence of imprisonment imposed upon you as a serious sexual offender must be served cumulatively on any uncompleted sentence of imprisonment imposed on you today.  The Crown does not seek such a cumulation.

82Your counsel does not rely on any of the principles stated in the case of Verdins.

Objective gravity

83The objective gravity of your offending against Ms Hailes in November 1986 is extremely high.  It started with an aggravated burglary where you entered
Ms Hailes' flat with the intent to commit an offence involving an assault. 
The Crown did not submit the offence involving an assault was rape. 
You entered in the night at a time when the occupants would be expected to be asleep.  You entered by cutting a flywire screen.  You went to her bedroom where she and he son were sleeping and removed the son from her room.

84Pausing there, DPP v Kenna[6] is one of the three cases referred to me when I heard submissions considering the operation of s.46(3) of the Crimes (Sexual Offences) Act 1980. In it, Young CJ quoted these words from an earlier decision of his:

'There are few offences that strike more terror into the women of this community than offences which involve the breaking into a private house and the commission in that house of sexual assault.'

These words apply here. 

[6] Court of Criminal Appeal, unreported, 3 November 1988.

85Your offending then involved five instances of sexual penetration comprising oral penetration, penile penetration and anal penetration.  They occurred in terrifying circumstances for Ms Hailes and her son. She feared for her safety and that of her son.  He feared for himself and for his mother.  You were violent to her, leaving her with extensive soft tissue injuries.  You degraded her through the five forms of rape you committed upon her.  You were armed with a knife and Ms Hailes knew it.  You tied her up. The offences occurred late at night and in her own home where she should expect to feel safe.

Sentencing factors

86In sentencing you, it is important that you are punished for your offences, that others are deterred from committing offences in the same or similar character and that I denounce the type of conduct you engaged in this night.

87Given the intent with which you entered Ms Hailes’ flat, I am conscious of the need to avoid double punishment: punishing, that is, for the rapes, and also for the aggravated burglary with the specific intent that I have earlier described.

88The fact you are suffering from recognised psychiatric disorders is not relied upon in your case to reduce your moral culpability. Nor is the fact of sexual assault upon you at St Augustine's.  They, as your counsel acknowledged on the last occasion, constitute background information about you.

89As I said earlier, your counsel made it clear that none of the propositions in the case of R v Verdins[7] is relied upon.

[7] (2007) 16 VR 269.

90The more difficult factor is deterring you from committing these or similar offences in the future and protecting the community from you.  These offences were committed 33 years ago.  You have led a blameless life since then. 
In effect, you have rehabilitated yourself with a strong work history until 2016.  You are now 64 years age. You are disabled through your neck injury and cannot work.  You live a quiet, isolated life.  You gave up using drugs years ago.  You have undertaken some counselling through Towards Healing.  Mr Ball says in effect you are now a low risk of re-offending sexually. There is nothing to establish you are a risk of otherwise re-offending.  In your case, the need for my sentences to reflect specific deterrence upon you is low.

91Dealing with the question of how I treat your previous conviction, I brought to the attention on the last occasion a passage from the joint judgment in the case of Veen v Queen (No.2) and I quoted this. I showed counsel on that occasion this passage and I am quoting it now:

'There are two subsidiary principles which should be mentioned.  The first is that the antecedent criminal history of an offending is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences…The antecedent criminal history is relevant, however, to show whether the offender has manifested in his commission of the instance offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offending in the instance case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'[8]

[8] (1988) 164 CLR 465 at 477.

I have taken your prior convictions, especially the 1979 conviction into account.  It will not lead for that reason alone to a disproportionate sentence.  In 1986, you had a continuing attitude of disobedience of the law so that a more severe penalty is indicated.  It also shows your moral culpability for these offences and the need for condign punishment, not so much to deter you but to deter others.

92The effect, as I have said, of your offences upon Ms Hailes are profound, while the effect upon her son, Christopher, are significant.  The effect upon each of them is continuing.

93You have pleaded guilty at the earliest reasonable opportunity.  You gave very considerable assistance to the police in the investigations of your crime and you have demonstrated remorse. 

94Sentencing you as a serious sexual offender presents its own complexities.  First, I must bear in mind these offences occurred in a protracted episode rather than on separate occasions where the length of the protracted episode must be borne in mind.  On the other hand, the fact of a single event points toward greater concurrency. Second, I must give effect to the legislative policies sitting behind the provision requiring cumulation.  Third, I cannot disregard the totality principle as our Court of Appeal has said in the case of Zhao[9]:

'Section 6E must, of course, be given its proper effect. At the same time, and balanced against the presumption that it mandates in favour of cumulation, a sentencing judge should not put entirely to one side the approach usually taken to the commission of several offences as part of a single episode.  In addition, as set out in Gordon and Hopson, a sentencing judge should not set at nought the requirements of totality.  The balance is difficult to strike, but that is a product of the legislative requirement that is in place.'

[9] [2018] VSCA 267 at [99].

95Charges 2 and 4 represent two occasions each of the offending described in each charge.  Charge 2 represents two occasions of you introducing your penis into Ms Hailes’ mouth.  Charge 4 represents two occasions of you introducing your penis into her anus.

96How I sentence you on a representative charge is set out in the recent judgment of the Court of Appeal in Crouch (a pseudonym) v The Queen[10] and in particular paragraph 36.

[10] [2019] VSCA 30.

97I have already said at the outset the maximum penalties that apply in relation to each of the offences.

Sentences

98On Charge 2, I sentence you to five years and six months' imprisonment and this is the base sentence. 

99On Charge 1, I sentence you to three years and six months of which nine months will be cumulated. 

100On Charge 3, I sentence you to five years' imprisonment on which 12 months will be cumulated.  

101On Charge 4, I sentence you to five years and six months and I cumulate 18 months. 

102On Charge 5, I sentenced you to two years' imprisonment and cumulate three months. 

103That is a total of nine years’ imprisonment and I set a non-parole period of six years.

104I declare 40 days of pre-sentence detention has been served and that does not count today.

S 6AAA

105Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty to these offences, you would have been sentenced to 12 years' imprisonment and I would have imposed a non-parole period of eight years' imprisonment.

Declaration as serious sexual offender

106In relation to Charges 3 and 4, I have sentenced you as a serious sexual offender. 

Rape in aggravating circumstances

107I direct that the entry made upon the records show that you are guilty of each charge of rape with aggravating circumstances.

Sex offender registration

108There is one matter left. The Crown sought an order for registration under s.11 of the Sex Offenders Registration Act 2004, which was opposed. It was agreed I could make such an order in this case. The parties referred me, that is your counsel and the prosecuting counsel, referred me to the judgment of the Court of Appeal in Sayer v The Queen[11] and in particular to paragraph 92 of that judgment, which explains the operation of s.11(3) of the Act.  That subsection, that is sub-section 3 provides:

'The court may only make an order under this section, if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.'

[11][2018] VSCA 177.

109For completeness, sub-s.4 provides:

'For the purposes of sub-s.3, it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.'

110Returning to the judgment in Sayer, paragraph 92 reads:

'The operation of s.11 (3) was explained by this Court in Bowden v the Queen.  The following propositions emerge from that analysis:

(a) The inquiry whether to make a registration order involves a two-stage process.

(b) The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.

(c) For the court to be so satisfied, the risk must be real rather than fanciful.

(d) The evaluation of risk is directed to the risk upon the offender's release into the community, assessed by what is presently known.

(e) The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.

(f) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender's right to enjoy freedom and autonomy of action;

(g) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.'

111Turning then to the first stage, 33 years have passed since these offences. 
You have not reoffended in that time.  You are remorseful.  In your case, I take your remorse as pointing to a determination not to re-offend sexually. 
You associate these offences with your drug-taking.  I accept that is so. 
You have not taken drugs for 10 or 11 years now.  The amount of alcohol you now drink is not excessive.  Although as I have said, Mr Ball's analysis or conclusion is somewhat ambiguous, I take the view that he saw you as a low risk of sexually re-offending from the perspective of the static factor and capable of overcoming the dynamic factor.

112In light of paragraph (d) from the decision I have just referred to, I do not consider you to pose a real risk to the sexual safety of one or more persons or of the community and accordingly, I will not make an order under s.11 of the Act.

113MR LEWIN:  If Your Honour please.

114MS McVEAN:  If the court pleases.

115HIS HONOUR:  All right.  Do you want a moment to speak to your client before he's removed, Mr Lewin?

116MR LEWIN:  Thank you, Your Honour.  I will be going downstairs to speak with him.

117HIS HONOUR:  All right.  Well if you would remove the prisoner and other than that, I will adjourn the court.

(Prisoner removed.)