Director of Public Prosecutions v Van Der Zant
[2017] VCC 352
•30 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01045
Indictment number: D13141397
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Mark VAN DER ZANT |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 13 February-Verdict 23 February; Plea 23 February and 16 March 2017 | |
DATE OF SENTENCE: | 30 March 2017 | |
CASE MAY BE CITED AS: | DPP v Van Der Zant | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 352 | |
REASONS FOR SENTENCE
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Catchwords: Rape; Retrial; Intoxicated and Vulnerable victim;
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Fisher | OPP |
| For the Accused | Mr Dunn QC and Ms O’Brien | Lethbridges |
HIS HONOUR:
Mark van der Zant, following a relatively short trial, on 23 February of this year a jury found you guilty of one charge of rape. The verdict was unanimous and followed deliberations of a few hours with no jury questions at all. You have been in custody since the date of verdict. You have no prior criminal history. This is now the second time that you have been found guilty of this offence. You appealed the original majority guilty verdict and that appeal against conviction found favour in the Court of Appeal. See the case of Van Der Zant v The Queen [2016] VSCA 138. The previous trial judge sentenced you to five years and nine months' imprisonment with a three and a half year non-parole period. See the sentencing remarks of Judge Murphy of this court [2015] VCC 972. As I understand it, you did not appeal against the sentence, only as against conviction.
The charge of rape has a maximum penalty of 25 years’ imprisonment.
As to the facts, the jury have accepted the complainant’s evidence beyond reasonable doubt. That much is very clear. Your victim was a young hotel employee. I will not name her in open court, and as I have said, even if I did, no details that might lead to her identification could in any way be published by any person. She was 20 years old and she lived at home with her parents, but home was a fair way out of town. She and some other work colleagues went out on the night in question on a work get-together. She was in company with some older women, one of whom was much closer to your age and who was in fact the young woman’s work supervisor.
You and some work colleagues were down in Melbourne on separate work trips for your Sydney-based employer where you were all executives. In fact you happened to meet up with those other men and arranged to catch up for drinks and dinner. You then went to a bar and then returned back to your hotel which was the same hotel where the victim and her group had attended their gathering. The two groups met up at the bar by chance once the work gathering had broken up at some time around 11.00 o'clock. A group of six of you then sat at a table until the bar closed, and then beyond as the last drinks were consumed, so you and your two male work colleagues and this young woman and her two female work colleagues. What is very plain is that this young woman had very little to do with you in the course of the night. She was 20, you were in your 40s and you had from a relatively early stage set your sights on one of her much older female companions, her supervisor in fact. You and that other woman had obviously felt some form of mutual attraction, and indeed had engaged in some form of intimate activity in the toilet downstairs earlier in the night. You hoped to continue on with that upstairs in your room in due course. Ultimately, to cut a long story short, your young victim had drunk copious amounts of alcohol, cocktails and some shots and she had drunk to the point where she could not stand. Literally, she could not stand. She wandered off to the toilet, was quite some time away from the table and her boss went to find her and discovered that she was in a hopeless state. The issue then was what to do with her. It was around one o'clock by then and this threw something of a spanner into the works for your anticipated tryst with her boss. Her two colleagues or friends were invited up to your work colleague’s room on the ninth floor and the victim came as well. No-one really knew what to do with her. She could not even give her address. She was too drunk to put in a taxi and lived too far away, and her colleagues, at least at that point, recognised that doing that, putting her in a taxi, would not be the right thing by her. She was virtually helpless. The footage taken from the various CCTV cameras was telling indeed in this case; she could not stand, she could not walk. No sooner had she got up to that room on the ninth floor that she vomited and was then laid out on the floor. That room was then no longer habitable. She was then taken up to your room at about 1.41 am and was sick again in your room. Again she was laid out on the floor. The others in the group drifted away until it was only you, your unconscious victim and her boss, who was always the target, and willingly so, of your affections. By then it was close to 2 am.
Your victim was either on the floor or on the bed, it matters not one jot which. She would not have known where in the hotel she was, not even the floor of the hotel and certainly not the room. She was unconscious or asleep, call it what you will, and given her state as seen on the CCTV footage, she would be judged by any sensible person to be highly unlikely to emerge from that state for very many hours short of something in particular occurring to wake her up. Something very singular. Well something singular did happen. What happened is that you raped her. In fact you and the other woman had earlier engaged in consensual sex on the bed in the presence of your young victim, such was her state of unconsciousness. That sexual act did not conclude as your partner was uncomfortable with the physical presence of the younger work colleague. You did not ejaculate. The act stopped, and in that you behaved quite decently and appropriately and the two of you then went to sleep. By that point, if not even prior to that point, your victim had been lifted up onto the bed. That then left three of you in the room. The older woman woke up and left the room at about 3.58 am, intending to go downstairs and to get a taxi and take her young colleague to her home. You saw her leave but you remained silent. In fact she could not get back up to the floor as she had no key. She really might have tried a bit harder to get back to the 15th floor. She was, after all, an employee of that hotel chain and I am sure might have negotiated her return upstairs if she had tried. Unfortunately her departure left you alone in the room with this young woman. Frankly, though they had done the right thing earlier in the night by not ‘parking’ her in a taxi in such a state, your victim was ultimately not looked after by her friends as one would have hoped. I was pretty unimpressed by the supervisor’s conduct in leaving a 20 year old woman in your company. You were naked in bed. However I suppose it is easy enough for me to be wise after the event. It is clear enough that the supervisor would never have foreseen what followed, and of course what followed was entirely your fault, no-one else's.
Within less than half an hour of her boss leaving, your victim, who had been fully clothed and asleep on the bed at 3.58 am, was then seen to leave that room, your room, at 4.25 am. She raised the hue and cry, virtually immediately complaining of rape. She described in her evidence waking up to find that her clothes had been removed and you were touching her. She was totally disorientated, unwell and confused and felt powerless to stop you. She could not speak. She uttered not one word throughout the act. There was silence when you asked if you could “come inside” her. You had vaginal intercourse without her consent and withdrew and ejaculated on her stomach. Some of your semen was found inside her on the scientific examination. You had her arms held over her head. Having ejaculated you then obtained a towel for her and wiped away the ejaculate and then invited her to stay or at least let you get her a taxi. So there was a relatively brief period where you just took leave of your senses.
In issue in this case was absence of consent and proof of the required state of mind - your state of mind. So the third and fourth elements of the crime of rape. You gave evidence. Your account was that you had no doubt at all that she was consenting because so clearly she was by all of her many actions in the room. Your account as to her consenting has been totally rejected. The jury were satisfied beyond reasonable doubt that she did not consent. They have rejected your account as to the matters that you described, that much is very plain. I am equally sure they have rejected that you had any belief at all in her consenting. You were cross-examined about past evidence that you had given at the last trial, including your description of what you did once your consensual sexual partner left the room at 3.58 am. You said: “It crossed my mind that I wonder if she is interested in having sex with me”. “She” being a reference to your victim. What on earth would you be wondering that for Mr Van Der Zant? You described no interaction with her at all, nor she with you. No interest in either direction - none. Well there would be no harm in asking her so that perhaps it could cross her mind as well, which is exactly what you did not do but would have done if any of this was true. She was silent, not a word from her. You knew she was not or might not be consenting. You took the opportunity presented by her obviously vulnerable state to have sex with her for your own release.
You were aware she was not or might not be consenting. Obviously the jury was satisfied beyond reasonable doubt of that fact and I must sentence consistent with that verdict.
You gave evidence of the acts carried out by her that so clearly signified to you her consent to the act; so assisting in getting her own clothes off, engaging in some foreplay and touching and even enthusiastically engaging in the actual sex act. They have all been rejected by the jury. The puzzles thrown up by your account were so many and varied. How and why a woman who had been vomiting and comatose would return to life with such a spring in her step and act in such a way with a virtual stranger was one puzzle. A jury with their experience of the world and of life no doubt viewed that suggestion with disdain. Why a party to such a happy consensual act, as described by you, would be heading on out that door leaving that pleasant hotel room and all that it offered at 4.25 am was another puzzle, leaving such a happy event as portrayed by you, evidently with vomit in her hair. Yet she was, and the reason was plain, she was not consenting, she did not consent. She had been raped. She was cross-examined as to her assisting in undressing herself and in her engaging in acts of touching both you and herself, it was nonsense. It beggared belief when one has regard to the admitted state of this young woman at about 2.00 am, to her observed position by her colleague at around 4.00 am. There was a very tight timeframe for this unconscious, fully dressed woman, to wake and to indicate despite her illness and disarray, that she wanted to engage in sex with a virtual stranger and do so with not one word uttered by her or one word by you raising the possibility of sex. It was ridiculous. It is in that sense surprising that some of the character witnesses who have written references placed before me express their dismay and/or surprise at the verdict. One look at the video footage by any right-minded person and just a moment’s reflection on the actual chronology would give more than a hint as to the true events, those described by your victim. Still, I suppose, these people are your friends, and loyal friends at that, and it is understandable that they stand in support of you and your wife. I suppose they are grappling with your conduct as well.
Mitigation
Your counsel, Mr Dunn and Ms O’Brien, conducted a plea in mitigation immediately upon the verdict being returned. This was a very pleasant reminder of the way things used to be done in this court in a different and far simpler age. No diary sessions dealing with the availability of parties and judges, no calling for psychological assessments and opinions, often of very little worth, just counsel prepared and able to conduct a plea in mitigation which actually used to be the required position of any barrister conducting a trial in this court. I should not have been surprised, as I remarked to the jury during my charge to them and later when I finally discharged them, that they had been lucky to have had the assistance of obviously highly competent counsel down each end of the bar table. In any event, once I recovered from the shock of Mr Dunn being in a position to actually conduct the plea following verdict, something that has not occurred previously in the seven years I have sat as a judge, he raised a number of matters in mitigation. He returned to some of those on the part-heard plea date on 16 March.
Your counsel pointed to;
· The delay;
· The stressful nature of your being on bail, convicted and imprisoned, released on bail after the appeal and now remanded back into custody;
· The claimed increased custodial burden of your prison experience owing to your being confined at the time of the riots, but more particularly owing to your isolation from your friends and family and fixed with the understandable concern as to the predicament of your partner and your two children;
· He pointed to the absence of a number of matters of aggravation in this case and the opportunistic and unpremeditated nature of the offending;
· He submitted that there was much material which made clear that your conduct was out of character;
· The conduct for which you had now been convicted would have, he argued, a lasting effect on your life and career prospects;
· He relied upon a large bundle of character references, as well as a medical report from a doctor dealing with the condition of your youngest boy.
· He also at the most recent hearing tendered a form of apology from you to the victim marked as Exhibit 3 on the plea;
· He also relied upon evidence called from your wife as to the way in which your life had been upturned now twice and the difficulties in visiting thrown up by her personal circumstances and your past prison locations;
· He argued that when regard was had to your age, background and your lack of any criminal history, past or subsequent, that you had very good future prospects of rehabilitation and a very low risk of re-offending in this way.
He conceded the seriousness of your offending and the inevitability of a term of imprisonment with a non-parole period being fixed, though he argued that weight should be placed on the sentences passed by Judge Murphy. He argued that you ought not do any worse and perhaps even that you might do a little better given the passage of time and the effect of the delay upon you.
Prosecution
As is usual when a very sensible plea is conducted, the prosecution did not have much to actually say in response. There was no need to say much, it was, after all, obvious enough to all concerned that your conduct was very serious. The prosecutor submitted that your victim was a vulnerable young woman very significantly affected by alcohol and that you knew that she was vulnerable. There was some physical holding of her arms above her head during the act and you are a large man and were physically on top of her. It was an unprotected act of sexual penetration.
As I have already said, I am satisfied beyond reasonable doubt that you knew she was not or might not be consenting. That is consistent with the jury verdict, one I entirely agree with, by the way. You were using her for your own sexual release, that is obvious enough.
The character evidence led at your trial had a relatively dangerous edge to it, in my view, as one witness, Ms Halpin, described to the jury how you were plainly acting out of character on the night in question. You certainly were. Your respectfulness towards women, of which other witnesses spoke, may have not been too evident to the jury as you cheated on your own partner whilst having sex with one woman in the presence of that woman’s unconscious young work colleague, who was either on the same bed or on the floor next to the bed during that sexual act.
Your victim was vulnerable - you knew it. This was extremely serious offending in my judgment.
Victim impact
There are three victim impact statements, two from the young woman and one from her mother. I suppose it would be open to me to state that I take into account the impact of your crime and to go no further, but why should I do that? You see, this hearing is not all about you, though I will certainly say much about you once I move beyond the impact materials, which I will do shortly. You fall to be sentenced for your crime, and your crime was visited upon your young victim. Your crime has undoubtedly had very serious consequences for your totally innocent victim and these statements represent the one occasion for your victim to speak of the actual impacts of your crime. My major concern in endeavouring to describe the impact of your crime given the necessarily brief coverage that is afforded to it in these reasons, is that I might actually seem then to brush over the true impact here. I do not mean to. It is almost impossible for me to summarise the true impact into just a few sentences, but I shall try. Your crime made this young woman feel confused, ashamed, angry, upset, violated, embarrassed, and those emotions did not peter out. They persist. She initially took a month off work. Work was a very different place for her after the event, as this event occurred at the tail end of a work function and some of those at the functions knew of her later allegations - those who had left her to her own devices. She moved overseas, almost it would seem as an escape. Court commitments have been highly problematic for her. They have been highly confronting experiences, and again there has been much time taken off work for her to permit those attendances, in the lead-up and post the attendance. There has been a loss of trust in others and an inability to let others become close to her. The more recent impact statement placed before me details really the roller coaster ride in terms of the court chronology in this case; trial, verdict, sentencing, appeal and retrial, each event bringing great torment and upset to her, more lost time to attend the retrial, time that she had hoped to use at other times on pleasurable activities and family commitments. She describes the nightmares as being constant, waking up in a panic and sometimes even waking up in tears. Each step in the court proceeding compels her to remind herself of what you did to her, to revisit the night. Whether she wants to or not, she has to. Now counsel were only doing their job, I make that plain, I am not saying they have done anything wrong, but like it or not, she is taken to her statements, she is taken to her evidence, she is taken to the video footage. She is asked to watch the footage of the night, the night she was raped. She says the experience of giving evidence was the most traumatic and emotional experience in her life beside the period in which the actual crime took place. She concludes by saying that she struggles to trust other people. She says: “I feel I am forever damaged and will end up forever alone as a result of this”. Her mother describes in her statement her own guilt, or sense of guilt, at not having collected her daughter, the sadness of seeing her own daughter lose trust in people, including her, and of her daughter essentially running away from these events in moving overseas.
It is not her mother’s fault for not picking her up, she was, after all, waved away by her own daughter who was 20. It is not your victim's fault for getting so drunk. There would not be many 20 year olds who have not got drunk or even very drunk. It is not her work colleague’s fault for leaving your alone with her, though I do wish that she had taken a bit more care of her young charge. The fact is the fault is entirely yours.
Your victim says that she feels damaged. It is because she is - damaged by you, by your crime.
Well the impact statements made for sobering listening, and reading for that matter. I have read them since the plea. We are almost four years removed from this crime and still there is a rawness to your victim’s emotion. Your conduct will never be forgotten by this young woman. She will forever rue the day that your paths crossed. So will her mother, who, as I say, harbours some sense of guilt for not picking up her daughter, though of course she should not. Now it is not my job to be overwhelmed by this sort of material, and I am not. As a judge I am not here to respond emotionally to it, and I will not, and impact is of course but one of a large number of matters that I must consider. But I am required to take into account the impact of your crime, and here there has been very significant impact upon your direct victim and upon her loved ones.
I take into account the impact of your crime. It has been quite profound and will continue to be significant for many years to come. I hope that her dark thoughts now as to what life ahead holds for her turn out to be unfounded, that she learns to trust and to share and to love again. That at least the finalisation of the matter can lead to some better times ahead for her, for a more settled life, a new and far happier chapter in her young life.
Background
I turn now to your background. I deal with it but briefly as it is uncontroversial and I have no reason to doubt the background placed before me. I do in fact accept it. Nor is there anything actually in your background which in any way explains this very serious offending. Your background is also set out in Judge Murphy’s reasons. Whatever the Court of Appeal may have thought of his directions to the jury, his sentencing reasons are a tight and well put together body of work. Now I have to reach my own findings, but the plea has been conducted in broadly the same manner but without any endeavour to rely upon exceptional family hardship and with some reliance on delay since.
You were born on 8 May of 1971 and you are 45 years old. You were one of four children of a close and supportive family. You did Year 12 in New South Wales and went on to TAFE. By 1995 you had finished a Diploma. By 21 you had bought your first block of land. You worked in sales, you did a marketing degree and you were then employed by Telstra, as I understand it. You have always worked. At the time of the events you were working in New South Wales in a relatively senior white collar or executive role. Your parents up until this event would have regarded your life as something to be proud of and that is echoed in the various references placed before me by your family and friends. You met your partner in 2007 and had two children together, sons born in 2009 and 2010. The youngest boy has some behavioural issues obviously and they are not minor, far from it, and they are clearly exacerbated by your absence. He is a real handful. You bought a house in 2011 and in 2013 I believe you were studying part-time. Really, I guess you had it all, you had a successful career, you had a partner, had a house and two children. Of course, that has all been shattered. After the first trial you went into custody on 29 May 2015 and you remained there until bailed on 17 June 2016, following the Court of Appeal decision. So there is a period of 386 days. Your wife had worked to support the family in her small marketing business. You had obviously fallen from grace and in the period after being bailed you did some telephone sales from home and looked after the children. Efforts at more serious jobs stalled owing to the existence of this matter. The first period of custody was traumatic for you all. Your wife gave evidence before me. Life was a battle for her in your absence, and it will be again. The younger boy is a challenge and has extra help in class. Your wife tried to visit you every couple of months but of course that was not easy, she was coming from Sydney and you were not based in Melbourne.
The family live in Sydney. The decision was taken not to expose the children to the fact of prison life. They believed at the time of the first sentence that you were away on work. That is still the position, though it may change once you have taken advice from an expert in this area. It follows then that you had no visits from your children for over a year. A lot happens in a year at that age - you missed it all. Your wife would visit by flying down on an early flight from Sydney to Melbourne, then driving a number of hours to visit you at Ararat, staying overnight at a bed and breakfast and then flying home on a Sunday night. It is exhausting even to think of such a weekend and then her waking up on Monday to the reality of her life being the sole carer for the two children, one a very challenging child and far more challenging in your absence. It was a draining experience, of that I have no doubt, and It will be again. She spoke of the impact upon you of being distanced from your family and only having phone calls with them. She is still confident that the relationship is solid. Understandably there have been some relationship counselling engaged in. Well now you are back in custody, the whole business repeated. There is a high level of stress for you and your partner, and no doubt, of course, the victim and her family were also deeply affected by the appeal and retrial and having to go through it all again. The victim and her mother speak of this in their impact statements.
You have no prior convictions or subsequent convictions. No past criminal history at all.
Many of the authors of the references speak of your many good qualities and your respectfulness towards women. Well that was conspicuously absent on the day of the offending on the 15th floor of that hotel. But that does not lay to waste that evidence. What it shows to me is that you were acting out of character.
I cannot just take a one-dimensional approach and focus entirely on the nature of the crime. As serious as your crime is, you are far more than simply the man who committed this serious crime. The references make that abundantly clear. They are very impressive references, though I cannot, and will not act on any reference to your acceptance of blame or of your exhibiting any remorse for your crime. You have not done so in my view. Your recent letter does not overly impress me. The time for any remorse or for any admission of fault which you make in that letter was prior to running two trials. You chose to run a trial and did not suggest that there was one iota of blame or fault on your part. You admitted no mistake at all and made plain in your evidence that your victim was consenting and that there was just no doubt in your mind about that at all. You denied any crime. You denied that you had done anything wrong at all. Your letter would be of much greater weight in the context of a guilty plea. In such circumstances it would then be a very meaningful document indeed. In the context of the trial conducted as it was and the evidence that you gave, I really cannot give your letter much weight at all. They are words on a page and your conduct on the trial makes those words just a little bit hollow.
As to the other authors, they speak of remorse, but remorse is not to be confused with feelings of self-pity or even feelings of shame for non-criminal conduct, or shame at exposing your children and wife to such a difficult period as lies ahead. I am sure you have lashings of such emotions. I am not able to find any genuine remorse here for your criminal act.
Increased burden
I turn to some of the other submissions of your counsel. Prison will be hard for you, quite aside from any of the suggested increased burdens raised by your counsel. It is, after all, only your second portion of prison life at the age of 45. This is your first offence. You have none of the associations or experience that would make prison life tolerable, or manageable or even comfortable. It is a place that is totally foreign to your background and experience. It is, for you, an alien, stark, lonely and threatening place. You will also have real isolation. Your family and your friends will be geographically distant and visiting is not as easy for any of them as it is or would be if you were in the same town. I am sure they will try to visit whenever they can but it will not be easy. You will be distanced from your children. You will know of the very many extra burdens falling to your wife. The fact is that two parents together can divide and conquer a long list of tasks and appointments and commitments. There will not be two parents. The absence of one will obviously significantly increase your partner’s burden. You will worry about the difficulties that she will face, with the younger boy in particular, of his likely deterioration in behaviour. There is reference to his condition and to the way your absence works upon him in the doctor’s report, the improvements when you are present, the deterioration and escalation in your last absence and since verdict even. Some of the other authors speak of the same issues in their own written references. You will know what a handful he can be, you will know that your wife is in the spotlight and that you cannot assist her. You cannot share the burden, you cannot assist the children. I have no doubt that you will experience an increased custodial burden owing to the matters raised on the plea in this regard. There was also a period in the aftermath of the riots where you had some pretty significant restrictions on your movements, and I take that into account as well.
You have had the experience of being charged, released on bail, convicted and remanded into custody, sentenced, released on bail following the appeal and now you are back into custody. It is a cruel chronology not just for you but for everyone concerned in this case, and I take it into account. Now none of the matters raised by your counsel, either individually or in combination, amounted to exceptional family hardship which I could take into account. That had been argued on the previous plea before Judge Murphy and correctly rejected by him. Mr Dunn conceded that the circumstances were not exceptional and he was right. Still, I take into account those various matters in terms of the hardship of your sentence and serving it. It will be increased, of that I have no doubt.
Delay
I turn briefly now to the issue of delay. In a way I think I have already commented upon it when dealing a moment ago with the unfortunate chronology here. Your counsel argued that the court should take into account in a mitigatory manner the fact that there had been delay in this case. You exercised your rights to run a committal and then a trial. Well those are your rights, and that cannot be held against you. You were convicted and you then appealed and the Court of Appeal concluded that the first trial had miscarried. A new trial was ordered. Again none of this is your fault. You had no control over any of this. You were bailed and here you are now back in custody. It is, I suspect, harder than serving a straight sentence without the interruption. As to delay, I accept the submissions of your counsel. You have had uncertainty in your life until the trial was ultimately completed, and in my view real stress arising from that delay that has ensued. I am sure it has been most unsettling. No doubt there were similar considerations for your victim, though, of course, the conclusion of the second trial never had the possibility of propelling her into custody in the way that you have been so propelled. She did not have that uncertainty hovering in her life, though was clearly very deeply affected by every stage of the chronology and the court process, as her impact statement makes so plain. I have regard to delay in the manner argued by your counsel. It has been in the manner of a separate form of punishment. In addition of course your ongoing rehabilitation in the period of delay has been evident. So the delay is clearly mitigatory in this case and I take it into account in your favour.
Rehabilitation
As to your prospects of rehabilitation, your counsel really relied upon your background, your employment history and the presence of family support. He also relied upon the total lack of any criminal history. There are a number of personal references from friends and family members. I just do not see any need to go into them in any detail. I have read them again since the plea. They speak of your impressive character over many years and the significant impact of these proceedings upon you and your family. I do accept that the conduct that I have to deal with was out of character, as your counsel and these various authors suggest. You now call in aid your past good character.
Your counsel argues that as this conduct was so out of character it is unlikely to ever occur again in the future.
Though opportunistic, he conceded that your offending was still serious. If I might say so, it is not correctly described in the references as some "error of judgment." That is the way one of the authors of the character references describes your conduct, as an error of judgment. It is far more than that. You were presented with a vulnerable victim who mistakenly had been left in your care. You took advantage of the situation that presented itself for your own sexual release. Mr Dunn argued that you had no hope of avoiding detection as the event was in your room and you had identified yourself. You had no hope of avoiding identification if she went to the police and if they investigated it, but you had every hope of avoiding prosecution. The young woman was asleep, and in any event your response was to deny the non-consensual nature of the act. I wonder what this case may have looked like without the damning video footage, without the evidence of the work colleague who exited at 3.58 am and her observations at that point of the victim lying fully clothed and asleep, without the video of your victim leaving herself at 4.25 am.
Returning to your prospects of rehabilitation. In reaching judgments as to your risk of re-offence and your future prospects of rehabilitation, quite aside from the out-of- character nature of the offending, I am entitled to have regard to the deterrent effect of being arrested, being charged, being convicted and then serving the significant term of imprisonment which you will necessarily have to serve. Mr Dunn pointed also to what is described as the extra curial impact of your offending. That is to say you have been greatly reduced in your own circumstances, you are marked out in the future in such a way as to seriously degrade your future work and career prospects. You are a shadow of your former self and I do accept those submissions. You have lost a lot. You have lost a lot as a result of your serious crime. The last few years have been taxing upon you and your family, as indeed they have been taxing upon everyone connected with this case. Your counsel was arguing that you had very good prospects of rehabilitation and a low risk of re-offence and I accept those submissions. I cannot just ignore the balance of your life, a life as a contributing member of the community, as a son, as a father, as a partner, as a brother, as an employee and as a friend. There is material placed before me in each one of those domains.
Current Sentencing Practices
I have looked at the Sentencing Advisory Council Snapshot No.176 of 2015 for the crime of rape. I note that the median principal sentence of imprisonment for rape was five years, the most common sentence falling between four to less than five years with 47 such sentences imposed. However, there is a sizeable collection of sentences that are higher, some far higher, including 44 receiving sentences of between five and six years.
I do take into account current sentencing practices, as I am obliged to. I have also looked at the materials available at the Judicial College Sentencing Manual, including the collection of cases dealing with the crime of rape.
I was referred to the case of Coronado by your counsel. Over the years the Court of Appeal has made statement after statement about the seriousness of sexual offences against women.
I and many other judges in this court have pondered what Coronado would have received by way of sentence on an early guilty plea and with allowances made for remorse. However, I suppose we can ponder away. It is unimportant. The fact is that that case is not a comparable case. There are very many differences. Coronado was very young, you are not. He was going to be deported, his family lived in Chile. He was held in immigration detention as well and was also in 23 hour lockdown which was likely to persist. His conduct spanned seconds and he desisted, yours lasted quite some minutes and you did not desist. Yours was a completed act of penile vaginal penetration.
The fact is no case is ever identical. There is an inherent limitation in viewing statistical data, whether it is the median or the average, or even the most common sentence imposed. Statistical material says nothing of the particular background of an offender or about the nature of the crime or the nature of the penetration, or the existence or otherwise of aggravating features or anything of the setting or the context of the offending. Statistical material says nothing as to whether a matter proceeded by way of trial or a plea or whether there is remorse or none. Your conviction follows a trial and you have no remorse.
You must be punished for your conduct, though of course I must do so justly and proportionately. The court must manifest its denunciation of your serious offending. You really should be very much ashamed of yourself. You are not. You have still sought to justify your act both to yourself and to others, whatever your most recent letter might say. Punishment and denunciation are important sentencing purposes in this case.
Despite the favourable conclusions that I have reached as to your having a low risk of re-offence and your having very good prospects of rehabilitation, I still must at least consider the need to deter you from offending in the future. This purpose though can be significantly moderated given your past good character and my favourable findings as to your future prospects. I take into account your prospects of rehabilitation. As I say, I think they are very good.
I must also pay regard to the need to protect the community from you, but for the same reasons I think that purpose really can be greatly moderated. You have not presented any risk to the community over the course of your life and there is no reason to think that that will alter in the future. You have undoubtedly stepped far wide of your true character on the morning in question, there is no doubt about that. Your risk of re-offence is really quite low in my view.
Clearly, however, I must pay strong regard to the principle of general deterrence. That is a very significant purpose of sentencing in this sort of case, and by general deterrence I mean the court’s obligation to send a message to other people in the community that offending such as yours will simply not be tolerated by the courts. The message must be a very clear one. It must be an unmistakeable one. Repeatedly our highest court in this State, the Court of Appeal, has spoken of the seriousness of the crime of rape, especially the rape of vulnerable victims. You will recall Judge Murphy in his reasons citing some general authorities to this end. I see no need to.
The seriousness with which Parliament views the offence of rape can be gleaned from the maximum penalty applying to it. Twenty-five years’ imprisonment is the maximum term of imprisonment provided for and the maximum is one of the matters that I must have regard to under the provisions of the Sentencing Act.
Mr Dunn conceded the existence of a number of matters of aggravation. Firstly, he conceded that this offending occurred when the victim was in a vulnerable state. That is obviously a significant matter.
Your counsel submitted that the crime was spontaneous and there really was no great premeditation. Of course I accept that. Your counsel conceded that the fact of the rape being unprotected was a matter of aggravation in this case. Again, he was right. The aggravation lay in the risk of disease and pregnancy owing to the unprotected nature of that penetration and your disregard of those risks. Whilst, of course, it is a matter of some aggravation, I accept that there is ultimately no suggestion placed before me that there was any actual pregnancy or any disease contracted.
As I have announced already, this was an opportunistic crime. It was not premeditated. You had never met this young woman until the night in question and the conduct did not involve you spiriting her off to your room in some premeditated swoop. That is not what happened. You were in fact going to head off, you hoped, with her girlfriend as a couple but the victim ended up in your company owing to her state. The events had taken an unforeseen twist, that much is clear.
No-one has submitted that your offending falls at the very top of the range of offence seriousness, and that is assuming that the court can still use such language following the High Court decision of Killic. Clearly it does not fall at the top of the range of offence seriousness and that is because there are a number of aggravating features sometimes present that are absent here, including of course things such as the use of weapons or threats or filming of the act, or joint and/or sustained conduct or significant or gratuitous violence, or conduct that was designed to humiliate and degrade. Regrettably those of us as judges who sit in the courts see that sort of conduct often enough. However, the absence of some aggravating features does not then render the offence a minor example of it - it is not. As your counsel conceded, there are some features of aggravation present here and the rape, in my judgment, is a very long way removed from the bottom of the range of offence seriousness. It is certainly not a low level example of the offence by any stretch of the imagination, nor did your counsel suggest that it was. In fact I treat it as falling above the mid-level of offence seriousness owing to the known vulnerability of your victim. This talk of level of offence seriousness can so easily be misunderstood by people. It should not be. As a judge I have to pay regard to the gravity of the offence before the court and so I must consider where a particular offence falls on the spectrum of offence seriousness. I do that for every offence, be it a sexual offence or a crime of violence or a property offence. So people sitting in court, victims and others, lawyers and judges have these sorts of discussions as we did in this case. We have those sorts of discussions but one thing can never be overlooked; rape is always a serious criminal offence however it is committed, but I am required to consider the nature and the gravity of the offence for which I must pass sentence.
As I hope I have made clear enough, I judge this rape to be a serious example of the crime of rape, given the particular circumstances mentioned to date in my reasons, including the vulnerability of your victim owing to her level of intoxication. She was left alone with you. She was clothed. She had not done or said one thing to convey any interest in you at all. You summed up the turn of events and then opportunistically you raped her. You had been drinking but were clearly not befuddled and clearly not labouring under any sort of compromised state. You were aware that she was not or might not be consenting and you had no belief, reasonable or otherwise, as to the presence of consent. I am satisfied of that beyond reasonable doubt. This was extremely serious offending, make no mistake about it. You know the impact as you have read those impact statements. You have by your conduct changed another person’s whole outlook on life and you have none of the sentencing benefits that so often would apply to many of those covered by the statistical data, for instance, a person who demonstrates genuine remorse and who pleads guilty and at an early or earliest stage. Those sorts of sentencing benefits are very sizeable indeed in this sort of case, as they should be, but of course they have no application to you. You have chosen to run a trial, which was your right, and you are not to be punished for doing that, but what it means is that there are a number of mitigatory matters that apply often enough in other cases that just do not apply at all in your case.
Your offending was very serious. It demands a substantial term of imprisonment.
Past trial and sentence
I have to exercise my sentencing discretion as a judge of this court, so I have to exercise my discretion upon you in relation to your crime, but I am not free to just disregard or to ignore the past sentence that has been imposed by another judge. That earlier sentence has an extremely strong pull in relation to a judge sitting upon a retrial, and that is really an understatement. See the cases of RHMcL (2000) 174 ALR 1, Fitchett [2010] 393. I am required to give that previous sentence strong regard given the policy considerations spelt out in those decisions and others. It was not your fault that the trial miscarried. Had it not you would have faced the sentence that had been imposed by that other judge. To increase a sentence upon a retrial in such a setting could easily give the appearance to you or to others of some level of retribution or punishment for the bringing of the appeal. If the raising of a sentence on a retrial became commonplace, it might discourage appeals, and that is judged to be against the public interest as rights of appeal are an important means of preventing the perpetuation of error in criminal trials. Whilst it is true that I am not prohibited from imposing a greater sentence, there are those powerful policy considerations which underpin those many cases and which suggest that the previous sentence presents as something of an upper ceiling or limit that should not be exceeded. That the circumstances in which the retrial judge, someone in my position, might go beyond the earlier sentence, are very rare indeed. Having said that, might I say that but for that strong pull of the earlier sentence, I most certainly would have imposed a lengthier head sentence and a lengthier non-parole period. Given the features of this case, including the vulnerability of your victim, you would have done worse.
Your counsel argued that you might do a little better given the delay and the continued process of rehabilitation. I am driven by the restraint, a restraint imposed by those cases to which I have referred, not to exceed the previous sentence, but that is certainly not going to compel me to adjust in a downward manner a sentence that I would have exceeded had there been no restraint at play here. I am not going to increase your sentence, and in that you are very fortunate indeed that I am so restrained by the case law in this area.
Sentence
Would you stand up please. The time has arrived for me to sentence you for this crime, a serious crime committed upon your vulnerable victim, one which has deeply impacted upon so many aspects of her life and which regrettably will reverberate for years to come.
On Charge 1, the charge of rape, I convict and sentence you to five years and nine months' imprisonment.
I fix a period of three and a half years during which you will not be eligible for release on parole.
Section 18
You have been in custody since verdict on 23 February 2017. In addition you had previously served a period of 386 days which I will add to that figure making a total period of 421 days. I order pursuant to the provisions of s.18 of the Sentencing Act that this period of 421 days be reckoned as already having been served by way of pre-sentence detention under this sentence. So that declaration is to be entered in the records of the court.
HIS HONOUR: Mr Fisher and Ms Ebsworth, is there anything I have overlooked at all in terms of the formalities?
MR FISHER: No, Your Honour.
MS EBSWORTH: No, Your Honour.
HIS HONOUR: You're going to go down and see your client downstairs, Ms Ebsworth?
MS EBSWORTH: Yes, Your Honour.
HIS HONOUR: Well that completes the matter. I'll just sign the order. All right, I've signed that order so Mr van der Zant can be removed please.
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