Director of Public Prosecutions v Tua (a pseudonym)
[2023] VCC 909
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL jurisdiction
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL TUA (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2023 | |
DATE OF SENTENCE: | 1 June 2023 | |
CASE MAY BE CITED AS: | DPP v Tua (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 909 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: plea of guilty - one charge of rape-one charge of sexual assault-one charge of attempted rape- no relevant prior criminal history- standard sentence offence- increased burden of custody-
Legislation Cited: Crimes Act 1958, Crimes Amendment (Sexual Offences) Act 2016, Sentencing Act 1991;
Cases Cited:Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589, R v Edwards (1996) 90 A Crim R 510, Guden v The Queen [2010] VSCA 196 , Da Costa v The Queen [2016] VSCA 49, Jurj v The Queen [2016] VSCA 57, Mushv The Queen [2019] VSCA 307, Hasan v The Queen [2010] VSCA 352, Worboyes v The Queen [2021] VSCA 169, Brown v The Queen (2019) 59 VR 462, DPP v Macarthur [2019] VSCA 71;
Sentence: Total effective sentence of seven years and four months' imprisonment. Non-parole period of four years and eight months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | Victoria Legal Aid |
HER HONOUR:
1Samuel Tua[1], you have pleaded guilty to:
·one charge of rape contrary to section 38(1) of the Crimes Act 1958,[2] which attracts a maximum penalty of 25 years' imprisonment;
·one charge of sexual assault contrary to section 40 of the Crimes Act 1958,[3] which attracts a maximum penalty of 10 years' imprisonment; and
·one charge of attempted rape contrary to sections 321M and 38(1) of the Crimes Act 1958,[4] which attracts a maximum penalty of 20 years' imprisonment.
[1] A pseudonym.
[2] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
2Charges 1 (rape) and 2 ( sexual assault), are both rolled-up charges.
Circumstances of Offending
3The circumstances of the offending are set out in a summary of prosecution opening tendered as Exhibit A. It is necessary to set out a little of the background to the offending in order to place your offending in context. At the time of the offending in 2018 you were aged 44.
4The complainant is Milly Makoare[5]. Ms Makoare was aged 19 at the time of offending. She was born in Australia but moved to New Zealand when she was a young child. Ms Makoare then returned to Australia in 2017 and initially lived with her stepmother, Elizabeth Curtis[6], and stepbrothers. However, they had to leave their accommodation and experienced difficulties securing a permanent place to live.
[5] A pseudonym.
[6] A pseudonym.
5Ms Curtis met you and your family in January 2018. At the time you were renting a flat in Dallas. You and your wife, Mel Sampson[7], offered to let Ms Makoare stay with your family in the flat. You later found a house to rent in Thomastown and discussed having Ms Makoare move in there and pay an amount of rent.
[7] A pseudonym.
6Ms Makoare had only recently met you and your family. She did not know you well but you were on friendly terms.
7On 10 February 2018 Ms Makoare assisted you and your family in moving in to a house in Thomastown. The house had three bedrooms: you and your wife shared one bedroom, your daughters shared the second bedroom and Ms Makoare was to stay in the third bedroom.
8That evening, after moving house, Ms Makoare went with your wife to visit Ms Curtis’ sister. They returned to the house in Thomastown at around 9 pm. When they arrived back to the house, you were drinking whisky and already affected by alcohol.
9Your wife put your daughters to bed between 10 and 11 pm. Ms Makoare joined you for a few drinks. You were both mixing your own drinks, consisting of whisky and Coke. Ms Makoare consumed approximately three or four drinks. She felt fine but was tired. You had about another six drinks. You were both drinking on the front steps of the house.
10During the evening, you hugged Ms Makoare and repeatedly asked her if she was all right. The hugs made Ms Makoare feel uncomfortable. At this time your wife was also present, sitting outside on the steps.
11At about 1.15 am Ms Makoare went to her room and went to bed. Ms Makoare put her phone on charge. She could hear you and your wife arguing in Samoan. The complainant quickly fell to sleep.
12Ms Makoare woke up when she felt someone touching her between her thighs. Her shorts and underwear had been removed. You were on top of her. You had a hand over Ms Makoare’s mouth and told her to 'Shush before [Mel] hears'. You used both hands to open the complainant's legs. You licked the outside of her vagina. That constitutes part of Charge 2, sexual assault, which was the rolled-up charge.
13The complainant tried to push your head away from her, but you moved her hands away. You then penetrated her vagina with your penis. That also is constitutes Charge 1, or part of Charge 1, which is part of the rolled-up charge. Ms Makoare told you to 'Get off' and tried to push you off. You continued to tell her to 'Shush'.
14You stopped and then knelt next to Ms Makoare’s face. You tried to penetrate her mouth with your penis; however, Ms Makoare turned her head away. That constitutes Charge 3, attempted rape. You lifted up her shirt and put your mouth on her breast, and this is part of the sexual assault charge, Charge 2. The complainant then pushed you away and you put your head between her legs again, licking the inside of her vagina. This conduct comprises part of rolled-up charge 1.
15The complainant attempted to cover herself with a blanket. You tried to pull the blanket off her. Ms Makoare told you to get away before she called out to your wife. You told the complainant to 'shush' before you got up and put on your underwear. You then left the bedroom.
16At approximately 2.45 am the complainant sent a series of text messages to her stepmother.
17The text messages read as follows:
2:45 am Come get me please.
2:46 am Please.
2:52 am I don't want to stay here anymore please.
2:55 am [Liz] please he's outside my door.
Ms Curtis replied: 'Where's [Mel]?
2:56 am Sleeping please I don't want to stay here
2:58 am He walked back to his room.
Ms Curtis replied: 'Did he touch you?
2:59 am I woke up and he already put his thing inside me I don't want to stay here.
18The complainant telephoned her stepmother at 3 am and asked her to come and get her. Ms Curtis could hear your wife's voice yelling in Samoan. Shortly after that, the phone cut off. Ms Curtis attempted to call the complainant back but could get through. Ms Curtis was still half asleep and did not think that anything serious had happened.
19When Ms Sampson asked the complainant what had happened, she was scared, crouching in the corner and crying. Her underwear was at the end of the bed. Ms Sampson asked Ms Makoare, 'Did he put it in?' and the complainant told her 'Yes'.
20Ms Sampson brought you into Ms Makoare’s bedroom and showed you the complainant's underwear. Ms Sampson told the complainant to call the police but then grabbed the phone and stopped the call before it could connect. She accused you of raping the complainant, slapped you across the face and told you to leave.
21You then left the complainant's bedroom. Ms Sampson stayed in the room with her. Ms Makoare was unable to sleep. She sent a text message to her stepmother, telling her that she did not want to be in the house.
22In the morning the complainant had a shower. You later apologised to Ms Makoare. You told her that you were drunk and thought it was Mel’s room. The complainant threw the clothing that she had been wearing on the night of offending into the rubbish bin.
23Ms Makoare’s auntie came to pick her up and took her to the Royal Women's Hospital along with her stepmother. She underwent a physical examination and forensic samples were collected. There were no injuries around the complainant's mouth, nor her genital area or upper inner thighs.
24You were interviewed by police on 22 April 2019. You stated that you could not remember whether you did something with the complainant. You said you were both drunk. You willingly provided a DNA sample. On examination of the forensic samples taken during the examination of the complainant, only a single-source profile was found. You were excluded as a contributor.
Victim Impact
25Ms Makoare has provided a compelling victim impact statement and this was tendered on the plea. Ms Makoare describes the harm your offending has had on her both mentally and physically, saying it has haunted her. In her words, it has followed her like a shadow. Ms Makoare felt that she was blamed by her family and by your family.
26Ms Makoare experiences difficulty sleeping and she states:
I couldn't close my eyes because I was afraid something would happen again, every little nudge of the wind that blew against my curtains, every squeak of any doorknob that would open, any creak of the floor would scare me beyond compare. I would sit with my head in my knees just praying that I make it through the night unharmed or untouched.
27Ms Makoare refers to inflicting pain on herself which led to her being hospitalised. She felt this incident would ruin the rest of her life and any happiness she could encounter. She describes her emotional well-being as decaying from the inside until its consumed every little happiness she has left over. Ms Makoare has sought counselling to deal with the effects of the offending and states she has been diagnosed post-traumatic stress disorder.
28After the offending, Ms Makoare lost her place to live. She was unable to live with family and reports a period of homelessness post the offending. Ms Makoare struggled financially and notes she was lucky to reach her next pay without starving.
29I take into account the effect that your offending has had on Ms Makoare. It is an important consideration in the formulation of the sentence that I must impose.
Procedural History
30You were arrested in relation to this offending on 22 April 2019. You were charged in December 2019. The charges were committed to this court on 5 February 2021 following a contested committal hearing.
31The matter was ultimately listed for trial on 19 October 2022 but resolved in the days immediately prior to the trial being listed. You were arraigned on 19 October 2022. The matter was then listed for plea hearing on 7 February 2023, but it was adjourned due the need to obtain a psychological assessment following some concerns raised regarding your cognitive functioning.
32The plea hearing occurred on 16 May 2023 and you were remanded in custody on this date. You have accrued 16 days' pre-sentence detention.
Prior Criminal History
33You have admitted a prior criminal history, which dates back to 2014. You have a prior conviction for driving-related offences. You received a disposition of a fine and suspended sentence. I accept that your criminal history is of little to no relevance to the current sentencing exercise. Importantly you have no prior history for any sexual or violent offending and I accept your conduct on this occasion was an aberration.
Personal Circumstances
34Turning now to your personal circumstances, you are now aged 50. You were born and raised in Samoa. You are the third-eldest child, born into a large family. You have seven full siblings as well as five adoptive siblings. Your father worked as policeman and in government roles in the agricultural industry.
35You attended local schools and completed Year 10. You were purportedly an average student, you enjoyed studying your language (Samoan), as well as sport and mathematics. Your father became unwell while you were in Year 11, so you left school to provide financial support to your family. You began working in an agricultural shop, assisting in disease prevention.
36At the age of 24, you visited New Zealand for a rugby tournament. While there, you stayed with extended family and you obtained employment picking fruit and vegetables. You were able to make enough money to be able to send amounts back to your family in Samoa. You worked for a period of two years before applying to become a New Zealand citizen.
37While in New Zealand you met your first partner. In 2001, when you were you were aged around 28 years, you and your partner moved to Australia with your young daughter. You lived in Reservoir when you first arrived to Victoria. You found employment and continued to send money to your immediate family in Samoa. I note that you are still a New Zealand citizen and have never taken Australian citizenship.
38You and your first partner share three children together: aged 22, 20, and 18. Your relationship with her ended in 2006. You continue to maintain a relationship with your adult children. Your eldest daughter provided a character reference on your behalf, as tendered on the plea. She describes you as having a reputation of having 'a giving, happy and strong heart'. She notes that you were the provider for the family, who worked hard to support your children. She states that you have not been an abusive or violent person and that you love making people around you happy. According to her, you taught your son to respect women. She states she would not be the strong lady she is, if it were not for you and your guidance. These statements make your offending all the more inexplicable.
39In 2007 you commenced a relationship with another woman. You share a son together who is currently aged 14. Your relationship with her ended in 2010.
40In 2011 you commenced a relationship with your current partner, Ms Sampson. You have four children together. You and your partner initially separated after this offending; however, you later reconciled. I note that two of your children were born post your offending, with your youngest child born earlier this year.
41Your father unfortunately passed away in Samoa approximately two years ago. You were unable to attend his funeral, as you were on bail for these matters at the time. Your mother and siblings remain in Samoa. You have continued to send money home to your mother, whatever amount you could afford. You have not told your mother about these charges, as you are ashamed and you are worried about her.
42You have had a number of jobs in Melbourne. You have worked in the recycling industry and you have also been employed at a meat processing company. You were employed for a period of 18 years as welder for a megapot company. In 2020 you returned to the recycling industry and in 2021 you began working as a meat packer. You worked significant hours in the lead-up to your remand into custody. You often worked 11 hour shifts, Monday through to Saturday, in an effort to provide as much money for your family, knowing that you would be spending a period in custody in relation to this offending.
43I take into account that you have a strong work history and that you have been providing for your family both here and overseas for many years.
Family Hardship
44It is conceded by your counsel that, given the seriousness of the offending, a term of imprisonment must be imposed. Your absence from your family will be particularly difficult given that you have four children aged seven and under, including, as I have mentioned, a new baby born in January this year. Your partner will be required to raise your children alone whilst you are in custody (and perhaps beyond your release if you are deported). Ms Sampson has very few supports. Her family are overseas. You have been the sole breadwinner and, without your income, Ms Sampson will likely experience difficulties raising a young family on her own.
45Your counsel has submitted that I should take into account the hardship that your family will experience as a result of your incarceration.
46In Markovic v The Queen,[8] the Court of Appeal confirmed the common law position that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. Accordingly, hardship is only relevant as a factor in mitigation where it is highly exceptional, or the exceptional case where the plea for mercy is seen as irresistible. The circumstances must be such as to rise above the general hardship commonly suffered by families of those imprisoned.
[8] [2010] VSCA 105; (2010) 30 VR 589.
47 As the New South Wales Court of Criminal Appeal (Gleeson CJ) said in R v Edwards[9] (and cited in Markovic):
'There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, ... it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment'.
[9] (1996) 90 A Crim R 510, 515.
48I have given the question of your family hardship careful consideration. Whilst I accept that your wife will experience a hardship in raising your children alone without having you to assist or to provide for the family financially, I am not satisfied that these circumstances are exceptional. The hardship to your family is a sad but inevitable and somewhat unremarkable consequence of your conviction. It is the unfortunate reality of many prisoners in your position.
49However, in line with Markovic, I do accept that your anguish at being unable to care for and support your family will make the experience of imprisonment more burdensome.[10]
[10] Markovic [20].
50You are not an Australian citizen. Your counsel submits that as a consequence of the term of imprisonment to be imposed in this case, upon your release, you will likely be deported. You will therefore likely have lost the opportunity to reside in Australia where you have established a life yourself over the past 20 years. Having said that, your country of origin is one with which you are well familiar. However, as the prosecution submits, I cannot speculate on the prospect of your deportation. Nevertheless, I accept that the uncertainty associated with the spectre of your deportation increases the burden of imprisonment for you as compared with another prisoner who faces no such risk.[11]
[11] Guden v The Queen [2010] VSCA 196 [27], Da Costa v The Queen [2016] VSCA 49.
Psychological Report
51You were assessed by clinical neuropsychologist Harriett Downing and a report was prepared and tendered on your behalf.
52You reported to Ms Downing a past head injury with loss of consciousness in 2017. You were reportedly assaulted after leaving a pub early one morning. You have little recollections from this event and you reportedly woke up on train tracks. When you returned home your wife was shocked by your 'different face'. You attended hospital in the days following.
53Ms Downing was provided with an extract of your medical records from Northern Health, which detail your presentation at the emergency department in June 2017. On triage assessment you were noted to have cervical spine pain, dizziness, nausea and intermittent blurred vision. A CT scan showed no evidence of a cerebral injury but various facial fractures as well as a metallic foreign body in the soft tissues of the right-frontal region. You were reviewed by a plastic surgery registrar and a plan made for surgery at the Royal Melbourne Hospital.
54Your hospital records indicate that there was an expected admission but no notes of any surgery occurring. You were purportedly concerned about the impact the surgery recovery would have on your ability to work.
55You also disclosed a history of alcohol use to Ms Downing. You commenced alcohol consumption at the age of 17. Between the ages of 22 to 35 you would regularly consume on average two slabs of beer each weekend. Your alcohol use would occasionally cause you to sleep or black out. Once your children were born, your alcohol consumption purportedly reduced. You have previously used cannabis recreationally; however, you no longer use any drugs.
56Ms Downing notes that, having regard to your medical history, there was evidence of significant facial injuries but no clear neuropsychological signs or intracerebral injuries. Your head injury, while significant, is not considered of sufficient severity to result in acquired brain injury, although Dr Downing notes this could not be ruled out entirely. You participated in a neuropsychological examination and were assessed using a range of tests. Ms Downing estimates that you have a low‑average premorbid intelligence and characterised by your poor performance on verbal mediated tasks, including vocabulary, general knowledge, verbal reasoning and tasks of new learning and memory. Ms Downing notes that your performance on the tests were consistent with adequate engagement of effort but were likely impacted by your culturally and linguistically diverse background.
57Ms Downing opined that there is no convincing evidence of any major neuropsychological condition. Your neuropsychological profile is most likely to be impacted by your culturally and linguistically diverse background that mean your English fluency is below average and by some minor impacts of acute mental health symptoms including those of depression and anxiety. I note that your counsel places no reliance on the principles in Verdins; however, I take these matters into account in a general way.
Nature and Gravity of Offending
58Turning to the nature and gravity of the offending, the crime of rape is an inherently serious offence. The high maximum penalty that applies to this offence reflects the community's abhorrence of this crime. Rape is a deeply personal crime. I regard your offending as very serious. You violated a young woman in an effort to gratify your own sexual desires. Ms Makoare, whom you and your wife had offered a place to stay, was entitled to feel safe living with you. Earlier that day she had assisted your family with the move and you had interacted with her earlier in the night whilst you were affected by alcohol. You had kept hugging Ms Makoare, which had made her feel uncomfortable.
59In assessing the objective gravity I have had regard to the various matters identified in Jurj v The Queen.[12] You attacked Ms Makoare in her bedroom, approaching her when she was asleep. Accordingly, there was a degree of vulnerability that you took advantage of by virtue of her sleeping state when your first approached her. When she awoke you had removed her shorts and underpants and you were on top of her. You placed your hand over her mouth in an effort to quieten her.
[12] Jurj v The Queen [2016] VSCA 57 [80] (Maxwell P, Redlich and Beach JJA) ('Jurj').
60I accept that the offending was somewhat opportunistic. It occurred in the context of you consuming a large quantity of alcohol, but being intoxicated does not provide an excuse for your behaviour. There was no degree of pre-planning; however, you persisted with your sexual assaults on Ms Makoare, violating her in different ways.[13]
[13] Ibid [84].
61Your conduct involved multiple acts including licking her vagina and later putting your mouth on her breast. Despite her protests when you sexually assaulted her, you penetrated her vagina with your penis and later your tongue.[14] You also attempted to penetrate her mouth with your penis. In doing so, you made a conscious, deliberate choice to violate Ms Makoare in a number of different ways. As the Court of Appeal said in Mushv The Queen:[15]
'The fact that they [the offences] occurred in the course of one continuous incident must not obscure the gravity of the applicant's offending, and of each individual offence that he committed'.
[14] Ibid [80].
[15] [2019] VSCA 307 [72] Maxwell P, Kaye JA.
62Here I note that some of the offending comprises rolled-up charges and you will be sentenced on that basis, and bearing in mind the principles of totality.
63As you violated the complainant, she was telling you to 'Get off', trying to push you off but you continued to tell her to shush. You ignored her protests and thus exhibited an utter disregard of her free will, which underlines the harm she suffered.[16]
[16] Jurj [80].
64Moreover, you penetrated her vagina with your penis without a condom, which is an aggravating feature, as it carries with it a degree of recklessness with regard to the risk of unwanted pregnancy and sexually transmitted disease.[17] Although it is not alleged that you ejaculated, a level of risk nevertheless existed.
[17] Hasan v The Queen [2010] VSCA 352 [38].
65The course of the offending itself involved multiple acts, as I have said, yet I accept it was not committed over a particularly lengthy period of time. However, your actions would have been incredibly frightening for Ms Makoare. This is apparent from the text messages that she sent to her stepmother in the moments after the offending when she was pleading with Ms Curtis to come and get her. Your wife observed that she was scared, crouching in the corner and crying.
66It is evident from the victim impact statement that your offending has had a profound and long-lasting effect on Ms Makoare.
Delay
67I take into account that there has been considerable delay involved in this matter. The offending took place over five years ago in February 2018. I have been assisted by further information provided subsequent to the plea in relation to the delay. You were not interviewed until April 2019 and there was a further delay of almost eight months before charges were laid. The prosecution have advised this was in part due to unsuccessful attempts to make arrangements to conduct a pretext call, an inability to contact the complainant, coupled with difficulties ascertaining your whereabouts prior to arrest. Post arrest there was a further delay relating to forensic testing. Additional delays have been incurred as a consequence of events outside of your control, in particular the delays associated with the pandemic, though a portion of the delay reflects the fact that you initially disputed any criminal liability for the offending. You are not to be punished for exercising your right to trial; however, it does mean that there were further delays, particularly after you were committed to stand trial in February 2021, before you accepted responsibility for the offending in October last year.
68Additionally, proceedings have been delayed as a result of the need to obtain a neurological assessment, an important part of ensuring that all relevant matters could be put before the court on your plea.
69A consequence of the delay is that these proceedings have been in effect hanging over your head for many years. This has no doubt weighed heavily upon you, yet you have continued to work hard, support your family and there have been no further incidents of criminal behaviour. I take this into account.
Plea of Guilty
70I take into account your plea of guilty. It was not a plea entered at the earliest opportunity. Indeed it was an extremely late plea, given that you indicated your intention to plead guilty shortly before day that your trial was scheduled to commence. You conducted a contested committal in which Ms Makoare was cross-examined and in doing so she had to relive this experience.
71Nevertheless your plea of guilty is still one of considerable value. Your plea means that you have spared Ms Makoare the ordeal of having to give evidence again at trial. You have also spared the community and the courts the time and expense of running a trial. Your plea indicates a willingness to facilitate the course of justice. It is also evidence of remorse.
72Your plea of guilty also has a further utilitarian value given that it was entered at a time when the courts have been afflicted by the COVID-19 pandemic, which has resulted in the suspension of jury trials, which has led to a considerable backlog. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[18] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. Your plea should result in a perceptible amelioration of sentence.
[18] [2021] VSCA 169.
Prospects of Rehabilitation
73You come before the court with no relevant prior criminal history and a strong work background. You have the support of your wife and you also have a responsibility to care for and support your family. No formal risk assessment has been undertaken; however, I note that Dr Downing indicates that you have expressed your disgust at the sort of offending for which you have been convicted and that you were able to identify some way in which a victim of a sexual assault might be impacted. The offending appears to have occurred in the context of you being intoxicated and you have reportedly reduced your alcohol intake, according to information given by your wife to Dr Downing. All of these factors, coupled with the fact that you have accepted responsibility for this offending bodes well for your prospects of rehabilitation, which I consider to be reasonably strong.
Sentencing Act Provisions
74Turning now to the relevant provisions of the Sentencing Act, Charge 1 is a category 1 offence. Imprisonment is mandatory and cannot be combined with a community correction order.
75Rape is also a standard sentence offence. The standard sentence on this charge is 10 years' imprisonment.
76As section 5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
77Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to sentence. The standard sentence is a matter to which the sentencing court must have regard when imposing sentence.
78But as the Court of Appeal clarified in Brown v The Queen,[19] section 5B(3) expresses the legislature's clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It is to be treated as a 'legislative guidepost', having the same function as the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit 'two-stage sentencing'. Further, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[19] (2019) 59 VR 462.
79Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of the head sentence unless satisfied that it is in the interests of justice not to do so.
80Finally, I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.
81I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence by the process of instinctive synthesis. Having identified the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence for rape, in this case I have formed the view that the sentence I will impose on the charge of rape is lower than the standard sentence.
82Additionally, I have had regard to current sentences practices for this offence under the standard sentencing scheme, although this is not a controlling factor.
Serious Sexual Offender Provisions
83All charges are relevant serious sexual offences pursuant to Schedule 1 of the Sentencing Act 1991.
84After the imposition of a custodial sentence on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charge 3.
85The effect of sentencing you as a serious sexual offender is that the court must regard protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose the court may impose a disproportionate sentence. The prosecution does not seek a disproportionate sentence here and I do not propose to impose a disproportionate sentence. The court must, unless otherwise directed, order that the sentences be served cumulatively. Furthermore, I must enter into the record that you were sentenced as a serious sexual offender.
Rolled Up
86As I have already noted, Charges 1 and 2 are each rolled-up charges. When sentencing on a rolled-up charge the court must consider all of the circumstances of the offence and the totality of harm described in the charge. While I may consider all of the relevant circumstances of a rolled-up charge, the plea of guilty must still be treated as entered to a single formal charge. Here this applies with respect to Charges 1 and 2.
Totality
87You have pleaded guilty to three charges. The offences involve distinct and serious conduct; each offence warrants individual punishment. There is a need for the sentence to reflect the individual charges and the conduct they comprise. However, I note that the offending occurred as part of a single episode and there should be a degree a concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes is met with a total and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.
Relevant Sentencing Factors
88The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Pursuant to the Sentencing Act 1991, I am required to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offence, your culpability, which I consider to be high, the effects of the offending on the victim and your personal circumstances.
89The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated. I am to have regard to protection of the community. I also have regard to principles of parsimony.
90Your behaviour was reprehensible, Mr Tua, and the court denounces your conduct.
General and Specific Deterrence
91General deterrence is an important sentencing consideration. Other members of the community must understand that sexual offences against women without their consent, a violation of their rights, will not be tolerated.
92As the Court of Appeal stated in the case of DPP v Macarthur,[20] a case involving charges of rape and attempted rape:
'[T]he sentences to be imposed in a case such as this must make it clear that any person who is minded to exploit the vulnerability of members of the public, particularly women, in such circumstances by sexually interfering with them will suffer a deprivation of their right to be at liberty within society for a substantial period of time. As an associated consideration, it is important that the Court make it plain that offending of the kind that was engaged in in this case is entirely unacceptable and reprehensible. In that way, in a case such as this, the Court, by the sentences imposed by it, has a duty to express its denunciation of such offending in clear terms'.[21]
[20] [2019] VSCA 71.
[21] Ibid [69].
93Mr Tua, the sentence that I impose also needs to deter you from committing such offending in the future. I must also give primary consideration to the principles of just punishment and denunciation.
Sentence
94Balancing all of these matters, I sentence you as follows:
95On Charge 1, the charge of rape, you are convicted and sentenced to six years and eight months' imprisonment.
96On Charge 2, sexual assault, you are convicted and sentenced to 18 months' imprisonment.
97On Charge 3, attempted rape, you are convicted and sentenced to three years' imprisonment.
98I order that the sentence imposed on Charge 1 will be the base sentence.
99I order that two months of the sentence imposed on Charge 2 be served cumulatively on Charge 1.
100I order that six months of the sentence imposed on Charge 3 will be cumulative on Charge 1 and on other sentences imposed this day.
101This equates to a total effective sentence of seven years and four months' imprisonment. I fix a non-parole period of four years and eight months' imprisonment. That is the period that must be served before you become eligible for parole.
102Having been convicted and sentenced to a term of imprisonment on Charges 1 and 2, I have sentenced you as a serious sexual offender on Charge 3 and this will be noted in the records of the court. I note that I have ordered partial cumulation on this charge.
Pre-sentence Detention
103Pursuant to section 18 of the Sentencing Act 1991, I declare 16 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
Sex Offender Registration
104Given the charges to which you have pleaded guilty, registration under the Sex Offenders Registration Act 2004 is discretionary. In this case the prosecution have not urged me to place you on the sex offenders register and I do not propose to make such an order.
Section 6AAA
105Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of 10 years' imprisonment with a non- parole period of seven years.
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