Director of Public Prosecutions v Van Der Zant

[2015] VCC 972

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00678

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK VAN DER ZANT

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	19-22, 25-27, 29 May & 13 July 2015
DATE OF SENTENCE:	17 July 2015
CASE MAY BE CITED AS:	DPP v Van Der Zant
MEDIUM NEUTRAL CITATION:	[2015] VCC 972

REASONS FOR SENTENCE
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Subject:  Sentencing
Catchwords:             Rape – intoxicated complainant.

Cases Cited:Markovich [2010] VSCA 105, DPP v FHS [2006] VSCA 120, DPP v Dart [2015]VCC 167, DPP v Backhouse [2015] VCC 752, Ayolv The Queen [2014] VSCA 151, Singh v The Queen [2014] VSCA 250, R v Lakeland (Unreported, Victorian Court of Criminal Appeal, 19 November 1993, 12)

Sentence:Total Effective Sentence – 5 years 9 months imprisonment – 3 years 6 months Non Parole Period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	O.P.P
For the Accused	Ms M. Fox	Lethbridges Barristers & Solicitors

HIS HONOUR:

1Mark Van Der Zant; after a short trial and two days of jury deliberations, on
29 May this year, by majority verdict, you were convicted of rape.  The maximum penalty is 25 years' imprisonment.

The circumstances of the offence

2I am required to sentence you in accordance with the jury verdict.  At the time of the offence on 11 June 2013 the complainant was a 20 year old female.  You were aged 42.  The complainant was working as a receptionist in the hotel industry, and on the evening of 10 July she had attended a work function at a large hotel in the Docklands area.  She worked at another hotel in the same group.  There were a number of staff members there, and in the course of the evening the complainant consumed considerable amounts of alcohol.  As the gathering broke up later in the evening the complainant was with two of her fellow employees; who I will describe as the older female and the second female.  The older female was aged about 36 and the second female was aged in her late 20s.

3Late in the evening, when the complainant and her two friends moved to the bar to order some further drinks, they made eye contact with you and your two work colleagues; Mr Kelly and Mr Finette.

4At that time you were employed in a marketing role by a large online payments processing company and had been in Melbourne on a work trip where, independently, you had met Mr Kelly and Mr Finette, who were also based in Sydney but were in Melbourne on business.  You had met them late in the afternoon and had arranged to meet them for some drinks.  Subsequently, the three of you went out to a restaurant, followed by a bar, and then you arrived back at the bar of the Docklands hotel at about 11 pm.

5The three of you bought the females a round of drinks and they joined you at your table.  Around that time the complainant was feeling intoxicated, and there was CCTV footage confirming that she was unsteady on her feet.  In the course of discussions among the six of you there was little exchange between you and the complainant, and rather the exchange was between you and the older female.  The older female acknowledged in her evidence some degree of attraction to you.  At one stage you even were kissing her in the female toilet.

6At all events, as the bar closed in the early hours of the morning the complainant was extremely intoxicated, and there was a discussion among the group as to whether she was in a state that she could be sent home by taxi.  The complainant, who lived in the far western suburbs of Melbourne, had earlier arranged to be picked up by her mother, but later advised her mother that she would make her own way home.  There was consensus that she was unable to be sent home in that state, and so it was agreed the group would move to one of your rooms so that she could sober up.

7The group of you then attended at Mr Kelly’s room in the hotel.  There was CCTV footage indicating that the complainant had to be effectively carried into and out of the lift to be taken to that room.  When in that room she proceeded to vomit and was attended to by the other two females.  At that point the room became somewhat uninhabitable, and it was agreed that you, Mr Kelly, and the three females, would go to your room on another floor.  Again, the complainant had to be assisted in that manoeuvre.  The CCTV footage indicates that the group of you arrived at your room at about 1.41 am.

8Upon arrival at the other room the complainant again vomited and was placed on the floor, asleep.  Mr Kelly and the younger female left the room at around 2 am.  Your third companion, Mr Finette, had not attended at that room.

9After Mr Kelly and the second female left you proceeded to have intercourse with the older female for a short period.  The older female sought to desist as she was uncomfortable having her work colleague present.

10Either while this was occurring, or after it ceased, the two of you had placed the complainant on the bed, where she remained in a drunken sleep.  You and the older female then also went to sleep.

11CCTV footage shows that the second female left the room at about 3.58 am.  She gave evidence that she woke up and decided to go to the lobby to hail a cab for the complainant but was unable to re-access the floor, so she went home to her bayside unit.

12The complainant’s evidence was that she recalls vomiting in the first room and recalls being carried to the second room.  The next thing she recalled is waking up in the bed, where her upper clothes had been removed and her bra was hanging on one of her arms, her pants have been pulled down to her ankles, and that you were proceeding to touch her in the genital area.  You then had placed her hand on your penis, which she took away, and you then proceeded to roll on top of her and have intercourse with her.  She indicated that you had her arms above her head and were holding each of her arms by the wrist.  At some stage she recalls you asking about whether you could ejaculate or not, and you subsequently ejaculated on her stomach.  She described that she was feeling drunk at the time and was still under the influence of alcohol.  She tried to say something but could not say anything or react to what was going on.  She felt sick, in shock and ill in the stomach.  She denied saying or doing anything to indicate that she agreed to intercourse with you.

13The jury must be taken to have rejected your account that the complainant was a willing participant, and had assisted in removing her clothes after you had put pressure on her leg a short time after the older female left the room.  On your account the intercourse occurred for some minutes.  You conceded that the complainant had not said anything in the course of it.

14It was common ground that you offered the complainant a towel, offered for her to stay in your room, and also offered to call a taxi.  The complainant proceeded to get dressed, and on the CCTV footage was observed to leave the room at about 4:21 am.  The complainant then proceeded to contact both her mother and the older female by text, and then proceeded to the bayside unit of the older female, where she was subsequently picked up by her mother and taken to the police station.

15As I have indicated, I am required to sentence you consistently with the jury verdict.  Your counsel submitted that it would be open to the Court to conclude that the jury accepted some of your evidence, and that in relation to your state of mind you had an unreasonable belief that the complainant was consenting.  This was put on the basis that you gave evidence as to the complainant’s response to you in the course of the intercourse, and in the immediate aftermath of the offence the complainant appeared sober on the CCTV footage, and you had been affectionate to her in offering her the opportunity to stay in the hotel room and calling a cab.

16I do not accept the submission. I am satisfied that the jury rejected your evidence that the complainant was consenting, and indicating to you that she was consenting. Rather, there was overwhelming evidence from the complainant herself, and from the CCTV footage and the other witnesses, that the complainant was in an intoxicated state late that evening, and when she finally reached your room in the early hours of the morning.  She disputed that she had done anything to indicate she was agreeing to the intercourse.

17I am satisfied that it was open to the jury to reject your account such that it cannot be said that you had any unreasonable belief that the complainant was consenting.  You must have been aware of her intoxicated condition, given the events and her state before the older female left the room, and given her condition, it is highly unlikely that the jury would have accepted that she was in a position to indicate by her conduct at the time that she had sobered up enough to create in you a belief, unreasonable or otherwise, that she was consenting to intercourse with a person that she had had virtually no interaction with the previous evening.

Seriousness of the offence

18Although this offence was not the subject of any pre-meditation, and was opportunistic and did not involve violence, the offence involved you taking advantage of an intoxicated, vulnerable young woman, who was fortuitously in your hotel room.  You admitted under cross-examination that you were sober at the time.

19Next, it was unprotected intercourse which exposed the complainant to the risk of a sexually transmitted disease.

20Contrary to the submissions of your counsel, I do not accept that this offence must be seen as in the lower range of seriousness.  The two matters that I have just mentioned place it at least in the mid-range of seriousness for the serious offence of rape.

21In assessing the seriousness of the offence I must also take into account the impact of your offending on the complainant.  The victim impact statement is, as stated by the prosecutor, powerful and compelling.

22The complainant was off work for a month and indicates that she attempted to persevere with her employment for about a year, but was unable to do so.  She felt angry, confused, upset, violated and embarrassed by your crime, and remains in that state.  She was unable to explain what had happened to her colleagues.  She has relocated her employment overseas as a way of running away from it all.  She was, by accident, confronted with you as she attended the Magistrates' Court for the committal, and found giving evidence difficult.  She then had to seek three weeks leave for the trial, and found giving evidence:  "The most dramatic and emotional experience of her life,” other than the offence itself.  She was traumatised and angry by the puttage in the course of her cross-examination.

23In addition to these immediate matters she has found she is unable to trust people other than her mother and sister.  She had a falling out with her father and has struggled to trust men in general, and is seeking to rebuild her relationship with her father.  She has been in serious relationships in the past but now is unable to get close to anyone as she feels ashamed, embarrassed and violated.  She does not believe she would be able to become emotionally involved with another person.

24The victim impact statement, and her demeanour under cross-examination in the trial, are graphic indications of the impact of your crime on her.  In addition to that, although her mother did not file a victim impact statement, it was obvious from her mother’s demeanour when giving evidence that she too was angry and upset at the position her daughter had been placed in as a result of your conduct.

25The impact on the complainant of your offending is a matter that must be taken into account in assessing the overall seriousness of your conduct.  Putting together the circumstances of the offending and the impact on the complainant I regard this as at least in the mid-range of seriousness of what is a very serious offence, given the 25 year maximum specified by Parliament.

Matters put in mitigation

26First; you come before this Court with no prior convictions alleged against you, and nothing outstanding.  You placed your character in issue in the trial, and led character evidence from a long-standing friend, Mr Parker, and from your brother-in-law, Mr McClelland, in the trial.

27In addition to that, you have tended a number of references from close family and long-standing friends holding senior positions in industry, and in a university.  I accept that you are a person of good character.  I accept that you have contributed to the community, contributed to your family, and built a significant career in business in the marketing area.  You have also been involved in an advisory role with a major charity.

28Your personal circumstances are that you are now aged 44 and were brought up in the suburbs of Sydney.  You are one of four children of a family of two boys and two girls, and your parents are still alive, and your father was in Court supporting you throughout the trial and the plea.

29You were educated at the Model Farm High School in Western Sydney.  You left after completing your VCE in 1989 and commenced work with a bearing company.  You were able to hold down a role as a sales engineer with that company, and over that period obtained an Associate Diploma in Mechanical Engineering from a local TAFE.  You then switched to a major international company as Australia New Zealand Sales Manager.  Over the period to 2000 you obtain a graduate diploma in marketing from Monash University.  In 2000 you were employed by Telstra in various marketing roles, and then in 2003 moved to Macquarie Telecom, where between 2007 and 2010 you were employed as a commercial markets manager.  You then moved to another major company specialising in processing online payments, where you were head of key account management, and it was in that capacity that brought you to Melbourne on that fateful day of 10 July 2013.  You were retrenched from that company in early 2015, and since that time you have, in fact, been offered three different positions in senior sales and executive roles carrying substantial salary packages.  Due to the uncertainty associated with this matter you have chosen not to accept any of those positions.

30You met your partner, Sarah Rouhan, in 2007, and together you have purchased properties and have a significant mortgage on your family home in the northern suburbs of Sydney.  In addition, you have two young sons. In evidence was a report from a psychiatrist in relation to your youngest son.  I will return to that in a moment.

31On the plea Ms Rouhan gave evidence in support of you, indicating that she found this conduct as totally out of character.  She has forgiven you for your unfaithfulness and for your conduct.  She expresses strong support for you and your capacity as a father, partner, and member of a wider family, and your contribution to the community.  Similar sentiments were expressed by your sister, Ms Toni McClelland, who gave evidence.  Those sentiments are also contained in a number of the references provided by your family members and friends.  All indicate that they found your conduct as extremely out of character.

Exceptional circumstances

32A particular matter put in mitigation is that your youngest son has a developmental condition known as Asperger's, an autism spectrum disorder.  In evidence was a report from a clinical psychiatrist indicating that he is facing a critical developmental period, and that the joint endeavours of you and your partner are very important in his transition to school.  He is described as a “high needs" child, and the clinician notes that you and your partner need to work as a team to manage his demands.

33It was put that a sentence of imprisonment and the hardship on your son, due to your separation from him, constitutes exceptional circumstances such as to mitigate your penalty.  I was referred by the prosecutor to the case of Markovic [2010] VSCA 105, where the issue has been considered. I have carefully considered the evidence put on your behalf in the submissions, but I do not accept that the needs of your young son, and in particular your assistance to him that will be unavailable due to your imprisonment, constitutes exceptional circumstances, as they have been considered in various authorities.

34The authorities indicate that a finding of exceptional circumstances will be rare, but the term is not to be constrained by any formula.  In this case, however, the availability of your partner to assist in the care of your son, and indeed, the somewhat recent referral of your son for specialist treatment, as indicated in the report, and the need for further investigation, is such that I do not accept that hardship on your son due to incarceration meets the test of exceptional circumstances, as has been essayed in a number of cases.

35While I accept that your son has a developmental disorder that, according to the psychiatrist, would be best addressed by the continued parental involvement of both you and your partner, and further, that your absence from that involvement for a period may cause difficulties in addressing that developmental problem, I do not accept that the factual basis approaches the exceptional circumstances test that would allow some leniency to be exercised in your favour on the basis of hardship to your son.

36The alternative submission of your counsel was that even if it does not amount to exceptional circumstances, your separation from your son due to your incarceration in Victoria, and his residence in New South Wales, will mean that imprisonment will be more burdensome for you due to that separation, and your inability to provide him with the assistance that he needs.  I accept that as a matter of mitigation and take it into account.  In doing so, however, such mitigation in penalty can have only limited effect, due to the need to impose a sentence that reflects considerations of general deterrence and denunciation.

37I also take into account that your roots are in New South Wales, and thus incarceration in Victoria will make it more burdensome than if all your family and your close friends were located in this state, and thus were able to more easily access the prison system.  I recommend to the authorities that you be considered for an interstate transfer.

38Your counsel submitted that you have been classified for protection in the prison system, and thus imprisonment is more burdensome, and that ought be reflected in the sentence.  I do not accept this.  The authorities have a duty to protect you, and in the absence of evidence, that due to your conviction, you will throughout any term suffer significant limitation on your opportunities within the system.  This is not a matter of which I am prepared to take account.

39Another matter put by your counsel in mitigation was what she described as extra curial punishment.  Referring to authorities, she referred to the fact that as a result of your conviction you will suffer a significant loss of reputation, and humiliation that might not otherwise apply to someone who has had such a high flying career.  You will also suffer significant financial loss due to your loss of employment, and the difficulties in obtaining employment in the future.

40The personal financial consequences for your future as a result of your conviction are matters that I take into account, but they cannot be given decisive weight, as the sentence of the Court must vindicate community values, including equality before the law, and vindicate the rights of the complainant to her bodily integrity.

Prospects of rehabilitation

41Although you pleaded not guilty, I regard your prospects of rehabilitation as very good.  You have the strong support of your partner, Ms Rouhan, and your two sons, as well as your immediate family, including your parents and siblings, and their respective partners, as well as long-standing personal friends that have provided glowing references for you.  Your career to date indicates that you have a strong self-reliant capacity, and thus will be in a position upon your release to attempt to re-build a career that is law-abiding.

42Your strong prospects of rehabilitation are such that I regard specific deterrence as having little weight in sentencing you.

43I am required to set a non-parole period.  There is no correct or standard non-parole period.  A non-parole period is the minimum period which must be served to meet the purposes of sentencing before being eligible to serve the rest of your sentence in the community, should you be permitted to do so by the authorities.  Having regard to your good prospects of rehabilitation and your very strong family ties with your children and other family members in New South Wales, that makes your sentence of imprisonment more burdensome than a person whose ties are within this state.  I have had regard to that in fixing a non-parole period.

Purposes of sentencing

44     The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victim, if any.  I am required to 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, offenders are rehabilitated and reintegrated into society.

45In this case considerations of general deterrence and denunciation are particularly salient.  With the pervasive availability of alcohol and the cultural practice of young people becoming intoxicated, the need for society to protect those vulnerable women from sexual predation is heightened.  A clear signal must be sent that males who take advantage of vulnerable females for sexual purposes will be met by stern punishment.  The Court of Appeal has said on numerous occasions that the crime of rape is regarded by the community as a particularly serious offence.  This is itself evidenced by the maximum penalty, which I must have regard to.

46Denunciation is also a very important sentencing consideration in a case such as this.  In the case of DPP v FHS [2006] VSCA 120 at [42], Justice Vincent said:

“The courts, when dealing with rape cases, must have regard to the vindication of the community’s social values, pre-eminent among which are protection of personal and physical safety of its citizens.”

47In an earlier decision of Lakeland (19 November 1993 at para 12) the Court of Criminal Appeal said of this offence:

“It attacks the very foundations of a civilised society.  The community which aspires to high standards of individual dignity, culture, and enrichment of interpersonal relations must punish severely those of its members who would grossly debase them.”

48In sentencing you I am required to have regard to current sentencing practices.  In sentencing submissions I was not provided with much assistance as to current sentencing practices for this offence, given the wide range of cases that might come before the courts.

49I was referred to the case of DPP v Dart [2015] VCC 167. There are distinguishing factors in that case; including that there was a considerable period of delay, the offender was significantly younger than you, and had a low average IQ, and was cognitively and emotionally immature. The case of DPP v Backhouse [2015] VCC 752 was also referred to. That case involved a digital rape and there was significant delay, and there was a finding that the offence was at the lower end of rape offences. I do not find significant assistance in that case. The case of Ayolv The Queen [2014] VSCA 151 was referred to. This involved a violent digital rape, and the Court of Appeal said that the sentence of four years and nine months with a non-parole period of three years was within range.

50The case of Singh v The Queen [2014] VSCA 250 bears some similarities, in that it involved an intoxicated 18 year old complainant. The appellate Court found that the original sentence of seven years' imprisonment was outside the range, and re-sentenced the appellant to a sentence of five years and six months' imprisonment with a non-parole period of three years and three months. In that case the Court said that gross sentencing statistics provide only a rough guide as to current sentencing practices. The recently published Sentencing Snapshot Number 176 by the Sentencing Advisory Council indicates that in the five year period between 2009/10 and 2014, 192 people were sentenced for rape, and of those nearly 47 per cent received a sentence between four and six years. The median sentence was five years. Those numbers include both sentences imposed after trials, and upon those who pleaded guilty. As you went to trial you do not receive the discount accorded to those who show remorse and who have pleaded guilty.

51Each case must be determined on its own facts, but I must have regard to the seriousness of the offence, the maximum penalty, your personal circumstances and current sentencing practices.

52Weighing all the matters that I have discussed, and the submissions made on your behalf, I sentence you to five years and nine months' imprisonment.  I direct that you serve a minimum of three years and six months before being eligible for parole.  I declare that you have served 49 days of pre-sentence detention, including this day.  Any other matters, Mr Prosecutor?

53MR FISHER:  No, there's not, Your Honour.  Thanks.

54HIS HONOUR:  Ms Fox?

55MS FOX:  No, Your Honour.

56HIS HONOUR:  The prisoner may be removed and I thank counsel for their assistance in the trial and in the plea.

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