Director of Public Prosecutions v Tomisic

[2018] VCC 1335

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00748

DIRECTOR OF PUBLIC PROSECUTIONS

v

RENATO TOMISIC

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 9-12 & 16-25 July 2018 Plea: 20 August 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Tomisic
MEDIUM NEUTRAL CITATION:	[2018] VCC 1335

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Jury verdicts; intentionally causing serious injury; rape; assaults; threats; Offending in domestic relationship; substantial criminal history; speargun injury to head

Legislation Cited:            Sentencing Act 1991 (Vic), ss 6D, 6E, 6F; Sex Offender Registration Act 2004

Cases Cited:Postiglione v R (1997) 189 CRL 295; Monash v R [2014] VCSA 119; DPP v Hopson [2016] VSCA 303.

Sentence:Total Effective Sentence: 15 years, 8 months. Non-Parole Period: 10 years, 10 months.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	OPP
For the Accused	Mr G. Davis (and Mr R. Fowler at trial)	Slink & Keating

HER HONOUR:

1Renato Tomisic, you have been found guilty after a trial of one charge of intentionally causing serious injury, three charges of rape, two charges of common assault, and one charge each of making a threat to kill and making a threat to commit a sexual offence.

2The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.  For each charge of rape, it is 25 years' imprisonment.  For making a threat to kill, it is 10 years' imprisonment.  For making a threat to commit a sexual offence, and for each charge of common assault, it is five years' imprisonment. These maximum penalties show the objective seriousness with which Parliament, on behalf of the community, regards offences of each such nature, and I must and have taken them into account.

3The circumstances of each offence were explored at length during the trial, and I shall only briefly summarise each to allow assessment of its circumstances.

4In January 2013, you commenced a relationship with Ms Evelyn Timperley,[1] and she moved to live in your home in Hallam; in fact, your mother's house, where you lived with your mother. Ms Timperley has four children, but none of them were living with her. She says that you kept her living there with you under a combination of threats and violence towards her, including threatening to harm her children.

[1] Evelyn Timperley is a pseudonym.

5The first offence in time on which you were found guilty, is Charge 2 of making a threat to kill her family.  By its verdict, the jury must have been satisfied beyond reasonable doubt that an incident which Ms Timperley described occurring at your home during 2013 did occur.  In that incident, you called out to her from where you were in the backyard, held up one of your chickens and slit its throat with a knife, then dropped it and kicked it on the ground.  While doing this, you told her that this was what you were going to do to her family if she ever left you.

6Charge 4, of common assault, was based on events on 8 November 2013. 
Ms Timperley said that you had been drinking, and then, for some reason, you got angry with her, slapped her around the head, kneed her to the stomach and delivered kidney punches to her mid-rib area.  She later snuck out of the house and got herself to the Royal Melbourne Hospital, where she told medical staff that she had been assaulted by her partner - that was you.  Even though bruising was not noticed that night on her face, medical staff recorded that she was tender in the areas of the right side of the chest and above the abdomen.

7Your assault on her on that occasion was sufficient for her to seek assistance from a support agency to leave you.  She obtained crisis accommodation and was assisted to obtain an intervention order against you.  The intervention order was to last five years, and prohibited all contact by you towards her.

8Ms Timperley did not see you again for some 22 months after that.  She next saw you in October 2015, when you visited her at Caulfield Hospital where she was recovering from back surgery.  There was communication by text and phone between the two of you in the lead-up to, and shortly after that visit.  As a result of her reporting that you had visited her and she did not want that, you were arrested and charged with breaching the Intervention Order. I am not sentencing you for any of these events; that is, anything that occurred at Caulfield Hospital, nor for that breach of the intervention order, but I have mentioned it to give context to what came later.

9In late December 2015, Ms Timperley commenced to live with you again at your home.  She again says that you kept her there by controlling her movements and under threat of violence.  By this stage, your mother was no longer living in the house.

10The next charges of which the jury found you guilty all arise from the one overall occasion on 18 March 2016, which was the 21st birthday of one of Ms Timperley's daughters. She had been estranged from this daughter, but there was an arrangement to meet her for lunch on her 21st birthday at the shopping centre where her daughter worked.  Ms Timperley travelled there by bus and says that you had agreed to let her go there, but that when she was on the bus on her way back to your house, you rang her on her mobile phone and were angry that she was not at home.

11On her arriving back at your house, she described you being angry, and within minutes assaulting her by pushing her against a table, slapping her face, dragging her through the kitchen and hallway into your bedroom, dragging her by the hair, throwing her onto the bed and putting pillows on her head and kneeling on her.  She also described the bed being on wheels and rolling so that her head dropped back between the wall and the mattress, and that she thought she was going to die because she could not breathe.  You were also verbally abusing her throughout this. I do not know whether the jury found that every part of this conduct by you occurred, as any one part would have constituted assault.  I sentence you on the basis that the jury was satisfied beyond reasonable doubt that you committed at least part of the described sequence of actions, and that these constituted an assault on Ms Timperley which included physically and verbally, and with violence, forcing her into the bedroom and onto the bed.  That assault is the subject of Charge 12.

12Ms Timperley then described you going on to rape her on the bed in three separate acts of sexual penetration.  She described you raping her in what she called "every position there is."  In that she included oral penetration, I note that that was not the subject of any charge. I will be sentencing you on the basis that the jury was satisfied beyond reasonable doubt that you committed an act of sexual penetration by penetrating her vagina with your penis under Charge 13, another act by penile penetration of her anus under Charge 14, and a further act of again penetrating her vagina with your penis under Charge 15. Those acts constitute three separate charges of rape because each is a separate act of non-consensual sexual penetration, but all occurred as part of one overall incident on the same occasion.

13The charge of making a threat to commit a sexual offence - that is, Charge 22 - is based on Ms Timperley's evidence that on the morning you were due to go before the Magistrates' Court for breaching the intervention order by having contacted her by visiting her at Caulfield Hospital the previous October, you threatened to rape her son if she did not apply to have the Intervention Order revoked. The jury must have been satisfied beyond reasonable doubt that by your words and actions, you threatened to rape her son, then quite young, believing or reckless as to whether she would believe that you would carry out that threat.

14On 13 July 2016, she attended with you at the Frankston Magistrates' Court, where you were fined for having breached the intervention order.  She did apply to revoke the Intervention Order, but the Magistrate left it on foot.  Its terms were varied that day to allow contact by you with her, but the Order still operated to prohibit you from assaulting, harassing or otherwise committing domestic violence against her.

15The final charge on which you were convicted, Charge 23, arises from the very serious incident that occurred on 16 July 2016 at your home.  With Ms Timperley sitting on the couch, you picked up one of your spear guns, which was loaded and cocked and had the safety switch set at "fire".  The jury's verdict means that they were satisfied beyond reasonable doubt that you deliberately pointed it at her face at close range and pulled the trigger.

16The spear entered the corner of her left eye socket beside her nose, displaced the eyeball, damaging the optic nerve, fractured some bones around the lower part of her eye socket, and continued to pass through her head, miraculously missing her brain.  The head of the spear exited through her neck in the area close to the back of her left ear, but as the spear was about 1.6 metres long, part remained lodged through her head and part was protruding from her face.

17That she survived this injury was extremely fortunate for you - as well, of course, as for her.  It was an extremely serious and life-threatening injury. The immediate effect was that she felt extreme pain.  She described it as the most pain she has ever felt in her life.  She did not lose consciousness.  She was aware that she was bleeding heavily from what she felt was the area between her eyes, with her head being pulled forward by the weight of that part of the spear that had not entered her face, so she had to support it with her hand to stop it from pulling her head down.  This would have been both excruciating and terrifying. 

18When paramedics arrived they took some time to stabilise her condition and to decide how to move her safely to hospital with the spear still embedded through her head.  Part of the spear that was protruding had to be cut off.  She was placed in an induced coma before being conveyed by ambulance to the Alfred Hospital.  There an emergency procedure was performed to relieve the increasing orbital pressure forming around her eye from bleeding.  She then underwent surgery to remove the spear.  There were a number of standard trauma procedures undertaken, and of course measures such as antibiotics and dressings applied.  Imaging also demonstrated a possible fracture of the first cervical, that is, neck bone.  A multidisciplinary team approach then followed to deal with her recovery.

19Remarkably, by some four days later she was awake and conscious enough to tell doctors that she wanted to make a complaint about you having previously raped her. 

20She describes in her Victim Impact Statement that when she first woke in hospital she felt overwhelmed, finding herself naked, with tubes coming out of her, being asked by nurses whether she remembered getting shot in the head, and also being told she was blind in her left eye.  She was, she says, in an incredible amount of pain in her head, and had vision only in her right eye, and that was also partially impaired.  She felt lucky to be alive and thankful that the spear had missed her spinal cord and brain, but I accept that she has had the most difficult two years of her life since.

21She had to wear an eye patch, which drew attention to her, and she felt she was being pitied.  She has had difficulty with a variety of daily aspects of functioning, from sleeping, having to eat through a straw, and permanent tears coming from her injured tear duct. She has not been able to try to find work or to engage in many other activities.  She still has loss of feeling on the left side of her face.

22I am satisfied that both the physical and emotional impact of this incident and injury have been enormous for Ms Timperley for the last two years, and that there are likely to be long-term consequences, not only loss of sight and other physical impairment, but also emotional.

23Her victim impact statement deals only with the impact of the spear gun injury.  From her evidence during the trial, I am satisfied beyond reasonable doubt that in relation to all of the other charges that have been proven there have also been significant and long-term emotional consequences.  As a way of exerting your control over her, you used violence and threats to her children and to her, and about her, and the impact on her is in small part reflected through the several times in her evidence where what she said reflected that she believed that she must have done something wrong each time to incur your anger and violence.  That reflects to me that you had imparted to her that much of this was her fault, which it was not. 

24I must assess the objective seriousness of your offending and subjectively your culpability or blameworthiness.  In relation to the shooting of her with the spear gun, various circumstances make it objectively a very serious offence.  The maximum penalty of 20 years' imprisonment reflects how comparatively seriously it can be viewed.  You deliberately pointed at her head, at her face, a very dangerous, powerful weapon.  The jury must have accepted that you deliberately pulled the trigger.  I note that not only was Ms Timperley’s evidence that you extended your arm, pointed it directly at her face so that the spear touched her to the left of the bridge of her nose, but there was the evidence of Senior Constable Nisbett that on testing this weapon with a spear from an identical spear gun of yours, he could not discharge a spear other than by the application of at least 1.7 kg of force to the trigger.  The injuries that were caused were life-threatening at the time, and include long-term consequences as I've already explained. 

25An aggravating feature of the incident is that you committed this act in breach of an intervention order, of which, moreover, you had had reminder only three to four days earlier, when you had been the subject of orders about that intervention order at the Magistrates' Court. Even though a relaxing of the contact conditions had occurred, your appearance that day at court for breaching the order ought to have been a very salutary reminder not to deliberately harm Ms Timperley and, I might add, to control your anger or any other features of your behaviour that had in the past led to assaulting her. 

26From a subjective point of view you were well acquainted with the operation of spear guns, and apparently kept this one loaded, cocked and with the safety switch off.  In the heat of an argument you picked it up, pointed it at her face and pulled the trigger, discharging a metal spear that was 1.6 metres long and which had floppers which opened on its flight stopping. I accept that this was spontaneous and not a pre-planned action. However, in a state of anger you picked up this weapon with which you were well familiar, and aimed it at the face of the woman with whom you were in a domestic relationship and for whom you claimed to care.  She says that you said you were doing this to "force the evil out of her" and that you could buy her a new eye.  Those matters I do not know whether the jury accepted beyond reasonable doubt.  They would add not only to the evidence that the act was deliberate, but also reflect that you acted to assert your own concepts of control over her, and with no thought for the real likely consequences to her.

27Intentionally causing serious injury is a very serious offence and in my view this incident was high on the spectrum of seriousness for this offence, although not at the worst level of being carefully pre-planned. 

28The sentence on this charge must carry a high level of denunciation, general and specific deterrence.  General deterrence means sending a message to others who might engage in such offending that it will attract stern punishment.  Specific deterrence means sending the message to you not to offend similarly again.  Both denunciation and general deterrence are particularly important in my view in this case, to send an unequivocal message about the seriousness of such serious offending arising from a background of domestic violence.  Finally, as I shall shortly explain, because on this charge you are being sentenced as a serious offender, the principal purpose of the sentence must be protection of the community.

29I turn then to the other charges to assess their relative seriousness, and the sentencing principles that I am going to apply. 

30In relation to the three charges of rape, the maximum penalty of 25 years' imprisonment reflects that rape is regarded as a very serious offence.  I take into account that each of these acts of sexual penetration was committed with physical force, holding her down and moving her around to enable you to achieve the acts of penetration in different ways that you apparently wanted.  This followed what had been a violent assault in forcing her into the bedroom and onto the bed.  Whether pushing on top of her with her head jammed between the mattress and the wall is regarded as part of the assault under Charge 12, or part of the first act of rape, I found it a convincing description of a frightening part of your conduct towards Ms Timperley on this occasion, and I have taken it into account as relating to the acts of rape.

31I take into account as an aggravating factor that at this time there was an intervention order in place to protect Ms Timperley from domestic violence by you.  Indeed, on the date this occurred, it still prevented you from having any contact with her. 

32I take into account that although there are three charges of rape, constituted by three distinct acts of sexual penetration, they occurred in rapid succession on one occasion and immediately following an assault that is the subject of another charge. 

33As to your subjective blameworthiness, I find that this offending was committed in anger and as an exercise of power over her, with callous disregard for the impact on her.  Such attitude towards a woman for whom at times you purported to care or even to love was wholly selfish, cruel and callous, and totally unacceptable in a domestic relationship.

34I assess the acts of rape as serious instances of a very serious crime, but which should be viewed as each being part of one overall event. 

35The assault which preceded them was violent, involved at least one of several deliberate acts of physical impact on her, and was to exert control as well as to force her to the bed, where you proceeded to violently rape her.  I assess it as at least the middle of the spectrum for the offence of common assault.

36These offences also, as with the charge of intentionally causing serious injury, require general and specific deterrence and community denunciation to be important sentencing purposes.  As I shall explain later, protection of the community is to be the principal sentencing factor for the sentences on Charges 14 and 15. 

37In relation to the threat to kill Ms Timperley's children and the first assault, there was no intervention order yet in place when they occurred.  Indeed, it followed that assault.  So that was not an aggravating factor as it was for the later offending. 

38I take into account in assessing the objective seriousness of the threat to kill her children, that you used a dramatic and graphic demonstration that involved cruelty in itself to an animal.  However, it was physically removed from her in that it was observed by her through a window with you still outside, and as the threat was in respect of her children who not only were not present at the time, but who all lived entirely separately from you and her, there was little immediacy to it.  Of course, this charge does not need immediacy to be proven, and as I take the threat to have been intended to intimidate and exert control over her, it could have its impact on her without the presence of the specified objects of the threat, that being her children. Nevertheless, the circumstances in my view place it lower on the spectrum of seriousness for offences under this charge than those where the object of the threat is present, and a weapon held against or aimed at such person or persons. 

39Viewed objectively, this and the later despicable threat to rape her son, were serious instances of intimidating and exerting control over your domestic partner, Ms Timperley, by demonstrating your physical ability to force and frighten her into staying living in a domestic relationship with you.  Such conduct calls for denunciation, general and specific deterrence, and just punishment.

40In relation to the threat to rape her son, as I have said, it was to control her - on this occasion to make her apply to have the intervention order revoked.  I am not satisfied that that alone caused her to make that application - that is, the threat alone - because I see your demand that she apply to have that intervention order revoked as part of the overall acts of intimidation and control over her.  I do regard the threat to rape her son as a cruel threat to use against her.  As I have said, that too takes its setting against your violent and controlling relationship with her, and requires a sentence to reflect general and specific deterrence and denunciation.

41On the night of the spear gun shooting you were arrested, and interviewed by police in the early hours of the next morning.  You insisted that the shooting had been accidental.  You were charged and remanded, and have been in custody ever since.  That time will count towards your sentence. 

42You denied all of the charges from the start and stood trial on them.  You do not receive any more severe sentence for requiring these matters to be decided at trial. However, nor do you receive the leniency to which you would have been entitled had you pleaded guilty, for saving the time and cost of the trial, sparing Ms Timperley from having to give evidence, and accepting responsibility for your offending.  You have never accepted responsibility for your offending conduct.

43There is little to indicate that you feel any genuine remorse for your offending.  That is in part explained by your continuing to deny your guilt on all charges.  I accept that you were very distressed after shooting Ms Timperley, that is, shooting her in the head with the spear gun, as reflected in your call to 000 that night and in the subsequent interview by police in the early hours of the next morning.  However, you maintained that it was an accident, and your refusal to acknowledge responsibility for shooting her with the spear gun reflects that your reaction was overall more of regret for the consequences to you than empathy or remorse for what you had done to her. It may be that you are not capable of real empathy for other people by reason of your personality or your ways of thinking, but there is no material before me examining your personality so I can only rely on what your conduct demonstrates when viewed in the context of all of the matters of which I have heard. 

44Insofar as the assaults, threats, and acts of rape are concerned, you have denied that any of those events occurred, and in no other manner have you indicated regret or remorse.  Indeed, you appear to have no insight into the overall wrongfulness of your conduct towards Ms Timperley.  Unfortunately, many features of the learning about domestic violence as summarised by Professor Hegarty in her evidence during the trial, are borne out by what I see objectively from your conduct and attitude towards Ms Timperley. What I do take into account is that you have had these charges hanging over you without knowing the outcome for more than two years, and have been in custody all of that time, having been arrested on the night of the spear gun incident.  Although some of that time was due to your requiring a trial, there are two aspects which in my view require a modest amount of moderation to your sentence to take this period of delay into account. First, you were originally charged with attempted murder for the injuring of Ms Timperley with the spear gun, and after being committed for trial in the Supreme Court about two more months passed before that charge was withdrawn and the case transferred to this court. 

45Secondly, although found guilty on eight charges, you were found not guilty on 15 other charges, and to that extent your pleading not guilty and requiring a trial was partially vindicated.

46I turn now to your personal circumstances.  You are aged 48, nearly 49.  You were born in Australia to migrant parents.  You apparently have an older sister who never migrated to Australia, and with whom you have had little contact except for some Christmas cards over the years.  You have a brother living in Western Australia and another with whom there has been no contact for many years.  I am told that your father was fairly strict and difficult, and an alcoholic, and that this in part influenced you during your upbringing.

47You attended school to Year 10, and then left to commence work.  Your first job after leaving school was installing truck engines on a production line, and I am told you worked there for around two years.  After that you mainly worked in labouring jobs related to construction, and I am told these included heavy physical tasks such as carrying heavy plasterboards up flights of stairs.  I am told that as a result you have acquired long-standing back problems.

48You have a long criminal history that starts with Magistrates' Court appearances from when you were 20.  It ranges through multiple court appearances for offences relating to alcohol, cannabis, assaults, burglaries, thefts and robbery.  Highly relevant is that you have numerous prior convictions for breaching intervention orders, starting in 1999, three such charges in 2001, another in each of 2002, 2003, 2007 and 2008, before the 2016 one concerning
Ms Timperley.  For some of these you received sentences of three months' imprisonment, albeit wholly suspended, and one such sentence was to be served by an Intensive Corrections Order. Although I was not told the details of each of these, at least the one in 2008 apparently arose from a domestic relationship, and I infer that you have a long history of being unable to contain your anger or control violence when in relationships, and making unwanted contact after such relationships have ended.  You also have a number convictions for offences of violence, possession of controlled weapons and damaging property, as well as failure to comply with various court orders for bail.

49I am told that much of your prior offending was related to what was your long-term abuse of drugs and in particular of alcohol.  Those are not excuses, and your record indicates both lack of self-control and a tendency to violence when angry or thwarted, even if the immediate reaction was enhanced by drugs or alcohol.  I am told that in more recent years you had ceased the illicit drug use and reduced your drinking, although some of the evidence of Ms Timperley indicates that you were still drinking at least on some of the occasions that gave rise to the charges. 

50Your criminal history does appear to have tapered off after 2011, before the breach of intervention order against Ms Timperley which I know occurred in October 2015 but came to court in 2016. 

51Also of relevance is that in December 2010 you were sentenced for two charges of indecent acts relating to a child under 16.  You appealed the sentences, and in the County Court on 5 May 2011 you were sentenced to five months' imprisonment, wholly suspended for 20 months, on a charge of indecent act with a child under 16, and to a Community Corrections Order for 20 months for a charge of indecent act in the presence of a child under 16.  I am told that those charges arose out of your conduct with a then 14-year-old girl who was the daughter of an acquaintance of yours, to whom you showed a photo of your penis and with whom there was an act of having her touch your penis. I am told that alcohol affected your behaviour.

52These are the only prior matters in your long criminal history which involve sexual offending, and they are of a very different nature from the rapes with which I am now dealing.  However, they reflect a disregard by you for boundaries of sexual behaviour.  They are also relevant because on the one for which a term of imprisonment was imposed, it counts as a relevant prior sexual offence when considering serious sex offender provisions, to which I will come shortly.

53Further, as a result of that offence you were placed on the Sex Offenders Register to report for 15 years.  You have been reporting on that, although there was one charge of failing to report, but I am told that after initial resistance you learnt to comply with that requirement.

54Your prior criminal history does you no credit at all, and, as I have said, involves a wide variety of different types of offending.  While none is for as serious offending as some of the current charges, specifically those of rape or intentionally causing serious injury, and even after there having been a break of some four years when you did not come before the courts, the current charges reflect an escalation in the seriousness of your offending.  Given your prior criminal record and the nature of the current charges, both specific deterrence and protection of the public in my view become important sentencing purposes.

55I am told by your counsel that after your father's death in 2003 you moved back to live with your mother, and were effectively her carer.  In fact you were the only member of the family in Melbourne and available to do that, and you felt some real sentimental care and devotion towards her.  From 2008 you obtained a carer's pension to reflect that you were her full-time carer, apparently not having known of your entitlement to it before then.  Prior to that you were on Newstart allowance.

56I am told that your mother is now 92 years old and had decided some years ago that it was too difficult for her to cope with living in her home, even with you there as carer, and even with some further assistance through carers from the Villa Maria Society coming to assist her with some personal matters such as bathing.  By the time Ms Timperley moved back into the house in December 2015, your mother was no longer living in the house, and she was trying different nursing homes by going there on respite care.  She is now permanently in a nursing home.  You have not seen her since your arrest in July 2016.  I am told that you realise that it is likely that you will never see her again, and that you have real regret for this, and it is a matter that has weighed heavily on you over the last two years and will continue to do so as you serve your sentence.  I take that into account in the overall matters I consider in arriving at your sentence.

57I am also told that after your arrest on the night of the spear gun shooting of
Ms Timperley, the house was not locked, and it was some time before your brother could come from Western Australia to deal with such matters.  By then apparently the house had been largely stripped of its contents, as had the back yard of a boat, various vehicles and other items there that were owned by you.  This means that you have no personal items with you during your sentence, and when you are eventually released from prison you will have nothing with which to restart your life in the community.

58I have already mentioned that it seems to me looking objectively at your offending overall that there had been escalation in it, and you had not learnt your lesson from previous court appearances or court sentences.  I have little other information about you that enables me to make any assessment on your prospects of rehabilitation when you are eventually released from prison.  It will be up to you to use your time constructively while you are serving what will be a long sentence, and it will be for the Parole Board to eventually take into account issues of your risk to the public on your release as well as your general prospects of rehabilitation.

59You have some health problems of which I have been told, although there is no medical evidence or documentation before me about them.  I am told that you have undergone an MRI on your neck while in custody, and are awaiting spinal surgery at St Vincent's Hospital.  I cannot determine whether that is in respect of your neck specifically or your lower back, which I was told had given problems over the years as a result of your work. I am told that you are prescribed Panadeine Forte for neck and back pain which, if true, reflects that you are regarded by prison authorities as suffering significant pain, as that is a strong pain reducing medication. 

60Further, whilst in custody you apparently became extremely ill last August, and ultimately underwent surgery at St Vincent's for removal of your gallbladder.  While I don't have any further detail about that condition, nor, as I have said, about your spinal conditions, I accept that serving a lengthy sentence in prison will be more burdensome if you are suffering ongoing serious medical conditions.  I have allowed some modest moderation of your sentences for this, in particular for what I am told is ongoing back and neck pain.  It is to be hoped that if you require spinal surgery it will be provided without excessive delay, and will relieve symptoms to an extent at least in due course. 

61Serious offender provisions of the Sentencing Act apply to some of these charges.  Part 2A of the Act defines four categories of serious offenders, and two of those apply to you for some of these charges. 

62First, there are two offences for which I will be sentencing you that constitute a serious violent offence under definitions in the Sentencing Act. The first is Charge 2 of making a threat to kill and the second is Charge 23 of intentionally causing serious injury.  That means that if you are sentenced to a term of imprisonment on the first, then for the second, that is, intentionally causing serious injury, you fall to be sentenced as a serious violent offender, and protection of the community must be the principal sentencing purpose on that charge.[2]  It also means that the sentence on that charge will be served cumulatively on all other sentences except to the extent that I order otherwise.[3]

[2] Section 6D.

[3] Section 6E.

63The provisions relating to serious sex offenders also have some operation in this case. I have already said that in 2011 you were convicted on one charge of indecent act with a child under 16 for which you were sentenced to five months' imprisonment. Even though that sentence was wholly suspended, that charge counts as a sexual offence under the definitions in Schedule 1 of the Sentencing Act.  After you are sentenced on two such charges to imprisonment, you fall to be sentenced on all further relevant offences as a serious sex offender. 

64In this case all three charges of rape are sexual offences under the schedule.  All will receive a sentence of imprisonment.  Therefore, after I impose sentence on the first charge of rape, that is Charge 13, on the other two charges of rape you will fall to be sentenced as a serious sex offender.  Again, that means that for those charges protection of the community is to be the principal sentencing purpose, and the sentences on those two charges are to be served cumulatively on all other sentences except to the extent ordered to be concurrent.

65I turn next to the principle of totality, which applies in more than one way in this case but with some complications.  That principle requires that in sentencing you on multiple charges I must reach a total sentence that is a “just and appropriate measure of the total criminality involved”[4] taking into account the gravity of the whole of the offending.  To achieve that I need to consider not only appropriate sentences on each individual charge, but what degree of concurrency and what degree of cumulation should be ordered between charges to adjust the overall total or aggregate sentence that will be imposed.

[4]Postiglione v R (1997) 189 CRL 295, 307-8; Monash v R [2014] VCSA 119 at [26].

66I have taken into account that these charges arise out of five separate occasions when you offended, so some cumulation between events is necessary to convey that there were multiple occasions.  They all arise from your relationship with Ms Evelyn Timperley during two separate periods - 2013 and then almost a seven-month period in 2016.  They all relate to what I find to have been a relationship that involved ongoing instances of domestic violence through you asserting control over her through both physical violence and threats.  Far from being an excuse, I have already stated that those circumstances call for the sentences to convey stern condemnation of such offending. However, I also consider that they require totality to recognise that there was an ongoing background to the individual actions that constitute separate offences.

67Further, I have already explained that I have taken into account that Charges 12, 13, 14 and 15 were all committed on the one occasion, each being a separate offence within one course of conduct. If section 6E did not apply to sentencing on Charges 14 and 15, I would order almost complete concurrency for these four offences, the initial assault, although of serious violence, being the prelude to your raping of Ms Timperley by three acts of penetration. Moreover, although three of those offences were rape, indeed violent rape,
Ms Timperley herself disclaimed in answering some specific questions that you had raped her three times on one occasion, as opposed to the number of ways that you did so. 

68Even though s.6E applies to the second and third acts of penetration constituting rape, and the impact of s.6E having to be acknowledged to be intended to modify totality principles,[5] in my view there should still be very substantial concurrency of the three charges of rape to reflect that it was one overall event. To reflect the impact of s.6E, I shall apply the greatest cumulation on one of the latter two acts to which it applies, but I cannot on the facts truly distinguish whether the first, second or last act constituting rape on that occasion was more serious. I consider that to allow s.6E to create greater cumulation than that in its application to the latter two of the three acts of rape on the one occasion would create an unjust result.

[5]DPP v Hopson [2016] VSCA 303.

69You are already on the Sex Offender Register due to the conviction in 2011.  You currently are required to report for 15 years.  After the sentences I impose today the reporting period will be for life. 

70Would you stand up now please.  Because of the technical complications of the orders I am going to tell you the overall effect first and then make the specific orders. 

71Renato Tomisic, on each of the eight charges of which you have been found guilty you are convicted and sentenced to a total effective sentence of imprisonment for 15 years and eight months.  I will fix a minimum term of ten years and ten months before you can become eligible for parole. The time you have already spent on remand for these charges - which I will have checked but I calculate to be two years, one month and seven days, or 767 days - will be reckoned served and will be deducted from both the head sentence and the non-parole period.

72I move now to the specific sentencing orders.

73On Charge 2 of making a threat to kill, I impose 21 months' imprisonment.  On Charge 4 of common assault, eight months' imprisonment.  On Charge 12 of common assault, ten months' imprisonment.  On each of Charges 13, 14 and 15, each being of rape, eight years' imprisonment.  On Charge 22, making a threat to commit a sexual assault, ten months' imprisonment.  On Charge 23, intentionally causing serious injury, 12 years' imprisonment. 

74The sentence of 12 years' imprisonment on Charge 23 will be the base sentence.  I intend there to be a total of three years cumulated on that for the three charges of rape.  To achieve that I direct that three months of the sentence on Charge 13 be served cumulatively on the sentence on Charge 23 and on all other sentences. I direct that all but three months of the sentence on Charge 14, that is, seven years and nine months, be served concurrently with all other sentences imposed today.  I direct that all but 30 months, or two and a half years, and therefore being five and a half years, of the sentence on Charge 15 be served concurrently with all other sentences imposed today. 

75I direct that three months of the sentence on Charge 2, two months of the sentences on each of Charges 4 and 22, and one month of the sentence on Charge 12 be served cumulatively on each other and on the sentence imposed on Charge 23. 

76As I have already said, I intend that these orders create a total effective sentence of 15 years and eight months' imprisonment.  I fix ten years and ten months as the minimum term to be served before you could become eligible for parole.  I declare 767 days of pre-sentence detention as reckoned served and direct that that be entered into court records.  That period will be deducted administratively from both the head sentence and non-parole period.

77I declare that on each of Charges 14 and 15 you are being sentenced as a serious sex offender, and I direct that that be entered in court records. 

78I declare that on Charge 23 you are being sentenced as a serious violent offender, and direct that that be entered in court records. 

79In addition, a forfeiture order was sought and I have a query in relation to that so I will just leave it aside for a moment. 

80I will also state at this stage that by operation of the Sex Offender Registration Act you, Mr Tomisic, will again be registered and the reporting period will be for life.  My associate will bring some documentation for you to see and to acknowledge receipt of shortly, when those documents are produced.

81Now you can take a seat for a few minutes, Mr Tomisic.  I first need to give counsel the chance to check that technically those orders achieve what I have said I intend, and then I will go on to the issue about the forfeiture order.

82MS PARKES:  There's no issue, Your Honour, with the figures.

83MR DAVIS:  I can't see anything.

84HER HONOUR:  Yes, all right.  It required - well, I have explained what it required.  Thank you for that.  I will have my associate have printed off the Sex Offender Registration documentation and let you, Mr Davis, have a look at it before it's taken to your client.

85In relation to the disposal order, I couldn't recall whether that was opposed or - have you got a copy?

86MR DAVIS:  That is just old clothing and weapons ‑ ‑ ‑

87HER HONOUR:  Well, yes it is.  I've got a query about it, of how it's worded and what's included, including there's some - at least one matter that must belong to Ms Timperley, and that is why I have left her on the screen at the moment. 

88Is that right?  That that gets forfeited also?

89MS PARKES:  The items of clothing?

90HER HONOUR:  The items of clothing including hers.

91MS PARKES:  As I understand, Ms Timperley didn't want those items returned, given the circumstances.

92HER HONOUR:  Doesn't want them back, all right, if that's so they can be included here.

93MS PARKES:  Yes.

94HER HONOUR:  All right.

95MS PARKES:  Yes, she's indicating that she doesn't ‑ ‑ ‑

96HER HONOUR:  Yes.  We don't have the sound on, Ms Timperley, so I - but you don't want them back?  Just shake your head.  All right.  They can be included.

97MS PARKES:  Yes, Your Honour.

98HER HONOUR:  The other issue is the other spear guns.  Do they fall to - under - the wording, I think there may be some words missing in the order on the front.  The matters in the schedule - want me to read out the bit that I find a bit ‑ ‑ ‑

99MS PARKES:  Yes, Your Honour.

100HER HONOUR:  I have to be satisfied that the property referred to in the schedule is an instrument, device or substance and any other property that is of negligible value - those seem to go all together, although it's awkward - that was used or was intended to be used in or in conjunction with the commission of the offences or was derived or realised directly or indirectly by that person or another person from the commission of the offence.

101Now, I simply query - I have no hesitation in deciding that these are dangerous implements.  I've also just announced a sentence that will mean Mr Tomisic will not have access to them for so many years to come that it may be that ‑ ‑ ‑

102MR DAVIS:  Your Honour, a solution might be for Mr Tomisic to just sign a forfeiture order document if the Crown prepare it.

103HER HONOUR:  Or a document agreeing to them being relinquished.

104MR DAVIS:  Yes.

105MS PARKES:  That might be appropriate, Your Honour.  We'll arrange for that documentation to be prepared.

106HER HONOUR:  All right, if I then - I'll sign the disposal order, but I think the black - what's called Item 3, the black coloured spear gun, and Item 4, the gold coloured spear gun, don't really belong in this context, although I don't doubt that it's desirable that they not eventually be returned to him. 

107MS PARKES:  Yes, Your Honour.

108HER HONOUR:  I'll cross them out and initial that.  Because Items 1 and - I don't quite know which metal rod, partial spear gun is Item 2, but I'll leave that in there.

109MS PARKES:  Yes.

110HER HONOUR:  It could be what was removed afterwards.

111MS PARKES:  Yes, thank you, Your Honour.

112HER HONOUR:  And Item 6 is also called a gold coloured spear gun, which is probably the same - I thought there were three overall.

113MS PARKES:  That's correct, there should be an additional black spear gun and the gold spear gun.

114HER HONOUR:  Yes, but both Items 4 and 6 are one gold coloured spear gun.

115MS PARKES:  Yes.

116HER HONOUR:  So they've been doubled up anyway I think.

117MS PARKES:  Yes, Your Honour.

118HER HONOUR:  I will leave a spear gun dart included here and the clothing.

119MS PARKES:  Thank you, Your Honour.

120HER HONOUR:  All right.  All right, I've signed that order.  Ms Timperley, do you want to continue to watch the rest of the proceeding or are you satisfied that you've seen enough?

121MS TIMPERLEY:  Yes, please.  I've seen enough.

122HER HONOUR:  I can't hear you unfortunately.  Just nod if
you ‑ ‑ ‑

123MS TIMPERLEY:  I've seen enough.

124HER HONOUR:  You've seen enough, all right.  Well, I'll ask my tipstaff to disconnect and you can have further contact through the prosecution's office if you want any further explanation,.

125MS TIMPERLEY:  Thank you so much.

126HER HONOUR:  All right, now we've got sound.  We'll disconnect the video link, thank you.

127All right, I'll have my associate just bring to counsel the documentation to check before it's taken to Mr Tomisic.  This is about the sex offender registration.  It requires him to report within seven days after release from prison.

128MS PARKES:  Yes, Your Honour.

129HER HONOUR:  And the reporting period will be for life.  What he'll be asked to do is sign his acknowledgement that he's received this documentation.

130MS PARKES:  Yes.

131HER HONOUR: I will just say that there is no suppression order in force in relation to this matter, however s.4 of the Judicial Proceedings Reports Act does prohibit the publication of the name or anything else that could identify the victim of the sexual offences, which of course is Ms Timperley.  I've used her name throughout the sentencing remarks. It's the legislation that prevents her name being published or identifying factors.

132MR DAVIS:  May I approach the dock, Your Honour?

133HER HONOUR:  I think you heard that Mr Davis, yes, you're welcome to approach and read it to your client.

134HER HONOUR:  I just should check, I added, I think it was four days to the pre-sentence detention.

135MS PARKES:  Yes.

136HER HONOUR:  That figure is right is it?

137MS PARKES:  Yes, Your Honour.

138HER HONOUR:  My associate's bringing back to you, Mr Tomisic, your copy of this documentation.  Are there any other matters I need to deal with?

139MS PARKES:  No, Your Honour.

140MR DAVIS:  No, Your Honour.

141HER HONOUR:  The original exhibits will be - of the prosecution will be returned soon and someone needs to take charge of that weapon ‑ ‑ ‑

142MS PARKES:  Yes, Your Honour.

143HER HONOUR:  ‑ ‑ ‑ of the spear gun, even though it's in its paper bag.  And they get held by the prosecution for requisite period.  I can't remember whether there were defence exhibits but they get held till the appeal period expires. 

144I will - I've got another matter at 2.15.  I'll leave the Bench shortly.  Mr Davis, do you want to speak to your client here or will you talk with him downstairs?

145MR DAVIS:  I'll attend downstairs, Your Honour.

146HER HONOUR:  You'll go downstairs.  All right, in that case, could we have
Mr Tomisic removed from the courtroom please?

‑ ‑ ‑