Director of Public Prosecutions v Theodoropoulos

[2016] VCC 2062

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02274

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE THEODOROPOULOS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 December 2016
CASE MAY BE CITED AS:	DPP v Theodoropoulos
MEDIUM NEUTRAL CITATION:	[2016] VCC 2062

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 E. Carins
For the Offender	Ms L. Warren

1HER HONOUR:  George Theodoropoulos, you have been convicted by a jury of five charges of raping a young woman who for the purposes of these remarks I will call Laura[1].  The jury were unanimous in respect of charge 1 and found you guilty by a majority of 11 in respect of the other charges. 

[1] A pseudonym

2By way of background, this matter proceeded before me as a retrial on five charges of rape.  The Court of Appeal ordered a retrial for these charges on 18 December 2015, see DPP v Theodoropoulos [2015] VSCA 364.

3You were released on bail after the Court of Appeal decision was handed down, having been convicted by a jury and sentenced by Her Honour Judge Hampel on 17 April 2015.   

4The maximum penalty for this offence is 25 years. 

5As to the circumstances of the offending, on 11 August 2012 you had invited Matthew, a business associate of yours, and Laura, his girlfriend, who was then aged 19, to a family party.  At the time you were aged 43. 

6The party was held at Stella your ex‑partner's house.  In the course of the night when at the party you, Laura and Matthew all engaged in drug taking, including ice and ecstasy and you were also consuming alcohol. 

7This conduct ultimately led you to having an argument with your then partner Effie, and Laura and Matthew were asked to leave the party.  They waited for a period of time for you outside and at about 5 am, that is in the early morning of 12 August, the three of you left together. 

8You all went to a motel nearby and the three of you continued to drink alcohol and smoke ice.  At one stage you left the motel to pick up Stella and brought her back to the motel room.  She stayed for a while with you all, then you drove her home. 

9When you returned Laura was asleep in the bed in the motel room.  You spoke with Matthew, who soon left and went out to try to get some ice and to buy some food.  On Laura's account, which by the verdict on charge 1 the jury must have accepted, she woke up to discover that she was lying on her side with you holding her hip and performing oral sex on her.  She said she was in shock and was going in and out of consciousness. 

10Next, again on Laura's account, which by the majority verdicts, 11 of the members of the jury must have accepted, you then moved Laura on to her stomach and penetrated her vagina with your penis, charge 2.  She was by then awake enough to tell you to stop but you did not.  She said she was afraid to resist but she did not know what you would do.  She did not know at that stage where Matthew was and whether he was aware of what you were doing and/or a party to allowing this to happen to her.  This act of penetration came to an end when the phone rang in the room and you got up to answer it.  It was Matthew on the phone asking you about what takeaway food you wanted.  Although Laura could hear Matthew's voice, she said she did not call out or try to communicate with him because she was afraid of what you would do.  She did not know where Matthew had gone or how far away he was, how long it would take him to return and whether, in any event, he was complicit in what was happening to her.  After the phone call you went back to Laura on the bed and immediately digitally penetrated her, charge 3. 

11You then penetrated Laura's vagina again with your penis before ejaculating on her back and wiping her back with a hand towel, charge 4. 

12You then inserted your fingers into Laura's vagina for a second time, charge 5.  This caused her pain and she rolled over to stop you from doing this. 

13You then moved away from the bed and Laura stayed there, drifting in and out of sleep.  According to her evidence during these last four acts of rape she kept telling you to stop and saying no but you continued. 

14Matthew eventually returned with some food.  You and Matthew ate and talked and eventually Laura got dressed in the bed under the blankets. 

15About an hour later at midnight, the three of you left the motel room together.  Laura and Matthew got into a taxi and went to Matthew's mother's home where they were living.  Soon thereafter Laura rang her ex‑boyfriend and told him she had been raped.  Shortly after this call she also told Matthew that she had been raped by you. 

16At about 5 am on 13 August, Laura went to the police with Matthew and his mother and reported the rape.  She was later medically examined at a hospital. 

17On 1 September Laura again attended the police station where she completed her statement.  She also indicated, after police had made the request, that she would engage in a covertly recorded phone conversation with you.  Two pre‑text calls were made during which you admitted having sex with her but you claimed the sexual activity was consensual. 

18You were arrested and interviewed some days later.  When interviewed you admitted having sexual intercourse with Laura but you maintained it was consensual.  You said Laura had been flirting with you at the party and that you had taken condoms with you from your car to the motel room, in anticipation of having sex with her.  You said as soon as Matthew left the room she was an active participant in both oral and penile/vaginal sex with you. 

19Your case at the trial was put in the alternative.  First, that the activity was consensual, that is that the jury could not exclude the reasonable possibility it was consensual.  Then, alternatively, that even if the jury were satisfied that she was not consenting, that nonetheless you believed she was consenting.  Again, strictly in onus terms the alternative basis was that the prosecution could not prove that you were aware she was not or might not be consenting or had not given any thought to whether she was or not or might not be consenting.  The verdicts mean, of course, that the jury rejected all alternatives. 

20Laura provided a victim impact statement which was read in court.  I take that material into account.  The events of this night have had a significant impact on her life, with her suffering mood swings, panic attacks and depression.  She indicated:

"I feel like I cannot go out and enjoy myself with family and friends as I don't trust anyone or anything around me.  I've lost friendships and family due to this and have become quite isolated.  All of this has affected my family relationships and relationships with my ex‑partner.  I have vivid nightmares about the event and various related things almost every night.  My trust for men has been shattered". 

21You are currently aged 47.  You are the son of hard‑working Greek immigrant parents and you worked with them in their businesses from an early age.  You struggled at school with problems associated with dyslexia. 

22You have a son with your ex‑wife Stella and another son with your ex‑partner Effie.  Additionally, you have been a father figure to her other son.  You still have a close relationship with the three boys.  Your mother and sister regularly attended court during these proceedings and I accept that you continue to have their support. 

23I received a number of character references from your sister and friends and take that material into account. 

24As to your employment, it is apparent you are hard‑working, initially assisting in your family's businesses, taking over some of them yourself and then setting up and running your own.  Most of those businesses have been either in importing or selling prestige cars or in establishing and operating hairdressing salons. 

25You and your former partner Effie are both qualified hairdressers and have run a successful chain of hairdressing salons in the UK and again back in Australia on your return. 

26You were working for a prestige car dealership at the time of this offending. 

27I was informed that you are a talented sculptor with works displayed in various galleries. 

28You clearly have inherited your parents' hard working and businesslike ethic and applied yourself to employment. 

29I was informed that when you were released on bail after your successful appeal, that you took on the full‑time care of your mother, and also regularly visited your father, who was suffering from an advanced stage of dementia.  Prior to your incarceration you had previously provided your parents a very high level of support. 

30You returned to custody in October this year on other matters which are currently outstanding.  It was around this time that your father passed away whilst you were incarcerated.  This has been a particularly difficult time for you given your close bond to both your parents. 

31Your counsel relied on all the matters that were previously submitted on your behalf before Her Honour Judge Hampel.  I was provided with the transcript of those proceedings and I take that material into account. 

32Additionally, your counsel relied on the significant impact on you of the death of your father. 

33I accept that you do not have any relevant prior convictions.  You do, however, have two subsequent matters.  One related to a significant fraud involving hundreds of thousands of dollars, for which you received a suspended sentence in this court, and the other is a conviction for soliciting.  Both are old, occurring in 2001 and 2000 respectively.  Neither of these matters were dealt with until after these charges were laid.  It would appear that was because whilst they were pending you left Australia and relocated to the UK in 2001 and remained there for about ten years. 

34Although they were only recently dealt with, they both occurred over ten years ago.  I was informed you had pending matters including stalking and possession of drugs. 

35It was also submitted on your behalf that you had been placed in protection in custody with prisoners becoming aware of the nature of your crime through the media.  It was submitted that you had been placed in lockdown for 24 hours whilst in MRC. 

36I was provided with a copy of an email from Corrections Victoria, Exhibit B, which sets out the conditions in custody when you were at MRC, once in protection, and then upon your transfer to Hopkins Correctional Centre. 

37I accept that you had a period of custody in MRC where you had only one hour run‑out and that your conditions in custody were onerous and I take that into account.  However, I understand that you have now returned to normal prison routine at Hopkins Correctional Centre and are out of your cell between 7 am and 8 pm, and that you have full access to work and other programs. 

38Further, I accept that given the history of these proceedings and that these events took place in 2012, that there has been some delay in this matter coming to final resolution.  It has been hanging over your head and your life has to some extent been on hold, whilst matters have been determined. 

39There are some features that auger well for your rehabilitation.  You have strong support from your family.  You have had a good employment or business history.  You have had limited involvement in the criminal law.  This is your first period in custody.  I am satisfied you have reasonably good rehabilitation prospects. 

40As to aggravating features in respect of this offending, you took advantage of a young girl who was asleep and who was left alone with you.  In that sense she was particularly vulnerable.  You took the opportunity to sexually exploit her in that condition and continued to perform several acts. 

41The maximum penalty for this offence recognises the seriousness with which Parliament regards this kind of offending. 

42In respect of totality, I accept this was five separate acts within a continuing single episode and that there should be significant concurrency between the sentences for the charges. 

43Your counsel appropriately did not submit that anything other than a custodial sentence was warranted for this offending. 

44Your conduct warrants just punishment and denunciation.  Sexual offences committed in circumstances where the victim is sleeping is opportunistic and exploits their vulnerability in that state. 

45Additionally, once awake you continued to engage in sexual activity with her even though she was saying no and was clearly not a willing participant. 

46General deterrence is an important sentencing consideration.  Others who are minded to take advantage of women in the manner in which you did need to be aware that they will be punished and that the court treats such activity as serious. 

47Principles of specific deterrence are also applicable, though, I accept your prior matters are of limited relevance. 

48These factors must of course be balanced with the matters in mitigation, including your personal circumstances and rehabilitation prospects. 

49By reason of the number of charges you come to be sentenced as a serious sexual offender in respect of charges 3, 4 and 5.  It is not necessary to impose a disproportionate sentence in order to protect the community and nor is it appropriate to impose totally cumulative sentences that would make a disproportionate sentence, which simply is not justified.  Considerations of totality also apply as previously indicated. 

50I consider there should be some cumulation for each individual act and the structure of the sentence also needs to reflect the different gravity of the offending between charge 1, which started with a sleeping or unconscious girl, and charges 2 to 5 where, on the evidence, the complainant was awake and verbally indicating she was not consenting. 

51On the jury verdicts you could have been under no illusion that she was asleep or consenting in respect to charges 2 to 5.  The sentence I have structured takes that into account.  

52If you could stand up, please.  In respect of charge 1 you are sentenced to be imprisoned for a period of four years and six months.  Three months of that sentence is cumulative on the sentence of charge 2, which is the base sentence and other partial cumulation orders I will declare. 

53On charge 2, which is the base sentence, you are to be sentenced for a period of five years. 

54On charge 3 you are to be sentenced for a period of three years and I direct that three months of that be served cumulatively on the base sentence. 

55On charge 4 you are to be sentenced for a period of five years and I direct that three months be served cumulatively on the base sentence, charge 2. 

56In respect of charge 5 you are to be sentenced to a period of imprisonment of five years and I direct that three months be served cumulatively on the base sentence. 

57That makes a total effective sentence of six years and I fix a period of four years as the time that you must serve before being eligible for parole. 

58What's the pre‑sentence detention, please? 

59MS WARREN:  Two hundred seventy‑seven days, Your Honour. 

60HER HONOUR:  Thank you.  I declare you have spent 277 days in pre‑sentence detention and direct that be counted and reckoned as part of the sentence already served.  I direct that the declaration that you are to be sentenced as a serious sexual offender in respect of charges 3 to 5 be placed on the record. 

61I think I made the disposal order the other day, didn't I? 

62MS CARINS:  You did, Your Honour. 

63HER HONOUR:  And also in relation to the suppression order dated 14 November 2016, that will be lifted from Friday 23 December. 

64Are there any other matters? 

65MS CARINS:  Yes, Your Honour, the forensic sample order.  It's automatic retention and I understand it's not opposed by the defence.

66HER HONOUR:  Do I need to specifically make the order, do I? 

67MS CARINS:  I think it needs to be noted on the record, Your Honour.

68HER HONOUR:  Yes.  I make the retention order pursuant to s.464. 

69Are there any other matters? 

70MS WARREN:  No, Your Honour. 

71HER HONOUR:  Thank you. 

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