Director of Public Prosecutions v Vickers (a pseudonym)
[2021] VCC 445
•16 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARNOLD VICKERS (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2021 |
DATE OF SENTENCE: | 16 April 2021 |
CASE MAY BE CITED AS: | DPP v Vickers (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 445 |
REASONS FOR SENTENCE
---
Subject: Criminal Law Sentence
Catchwords: Plea of guilty – Rape (rolled up charge) – Three separate incidents – Detention for a sexual purpose – Mitigating circumstances – Offender in relationship with victim from under the age of 16 – Low cognitive functioning.
Cases mentioned: DPP v Alimadad Mokhtari [2020] VSCA 161; Forbes v Queen [2018] VSCA 341; Gray (A Pseudonym) v R [2018] VSCA 163 at [53]; R v Mason [2001] VSCA 62; R v Mark Andrew Verdins (2007) 16 VR 269.
Sentence: Total effective sentence of six years and nine months with a non-parole period of three years and 10 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Guesdon | Direct of Public Prosecutions |
For the Accused | Ms Stephanie Wallace | Sally Wilson Legal |
HIS HONOUR:
1.Arnold Vickers[1], you have pleaded guilty to one charge of detention for a sexual purpose and one charge of rape. The crime of detention for a sexual purpose carries a maximum penalty of 10 years. The maximum penalty for rape is 25 years.
[1] A pseudonym.
2.You have admitted a criminal record that discloses relevant matters.
3.The facts of the matter are adequately summarised in the Prosecution Opening, which was Exhibit A on the plea, and forms part of these reasons for sentence.
4.You were 23 years of age at the time of your offending. Your victim was your partner at the time, who I will refer to as Beth Anderson[2], and was aged 32 years.
[2] A pseudonym.
5.You had been in a relationship with Ms Anderson for at least seven years at the time of the offending. I consider it likely that you were in a relationship with Ms Anderson prior to you turning 16. It is unnecessary for me to determine on balance whether the relationship was a sexual relationship at that time. It is relevant for my purposes to consider the length of the romantic relationship and whether you were ‘groomed’ by the victim as you allege from the age of 14 or so. These matters are relevant to your subjective culpability.
6.At the time of the offending, you were living with the victim in Tallangatta. Also living at the address was Ms Anderson’s nine-year-old daughter, to whom you had been a father figure since you were aged 16. Your two children with Ms Anderson, aged six and two at the time, were also living there.
7.Your relationship began to deteriorate in the six-months prior to the alleged offending. Beth Anderson tried to end the relationship numerous times and I was told that she actively tried to avoid any arguments with you. You had difficulty accepting the relationship might end and made threats towards her. Beth Anderson was afraid to leave and worried that the situation would escalate.
8.You had demonstrated in the past your inability to handle stressful relationship challenges. This is not altogether surprising given your ADHD, which I am told was largely untreated leading up to the offending, your low cognitive functioning, learning difficulties and associated limited education, hearing difficulties, the stresses of being such a young father and the circumstances of your relationship – which is a general catch all phrase for the difficult to define effect of the power imbalance at the heart of the relationship from the outset.
9.It should not be lost throughout my assessment of the relevance of the history of the relationship. that you were a child when you entered the relationship, you were a child when you became a father, and you were a child when you were first charged with offending against your partner. At all relevant times, Beth Anderson was an adult.
10.Approximately four-weeks prior to the offending, Ms Anderson discovered that you had downloaded a dating app, Tinder, to your phone. She confronted you about this and you became angry, throwing the phone around the room.
11.Ms Anderson contacted a friendvia Facebook messenger and asked him to come over and help. Apparently, he arrived and spoke to you and Ms Anderson. You have since stated that this friend became the object of Ms Anderson’s affections, which you apparently suspected at the time.
First Incident
12.On Saturday 13 July 2019, Ms Anderson was at home when she discovered that you had again installed Tinder on your mobile phone. She confronted you and you argued at length. She once again attempted to end the relationship. You said that you were going and left the house in your car.
13.You drove to the lookout at Tallangatta and contacted Ms Anderson, telling her that you were going to drive off the cliff and kill yourself.
14.Ultimately, you returned home and Beth Anderson told you that you could get into bed, but not to touch her. You got into bed and reached to grab her breasts with one hand and placed the other hand on her vagina. She pushed your hands away and told you to, ‘Fuck off’. She then tried to get out of bed.
15.Beth Anderson had partially risen up off the bed, when you put one hand underneath and one hand over the top of her like a ‘bear hug’. You were positioned behind her. You held her with a hand gripping each of her wrists. You told her, ‘You’re mine, I’ll do what I fucking want’, repeatedly.
16.You continued to try to feel Ms Anderson’s breasts and she could not get away from you. She kicked around trying to get free, but was unable to get away. During the struggle, she bit you on one of your thumbs. You accept by your plea that you held and restrained Ms Anderson for the purpose of sexually penetrating her and that is the facts relating to Charge 1.
17.You momentarily freed her before headbutting her to the back of the head. This is not charged conduct but is relevant context, as the conversation which followed the sexual intercourse which took place between you should have left you in no doubt as to the non-consensual nature of your activity with Ms Anderson at that time. The exchange also demonstrates your need for sex offender education and offending behavioural therapy.
18.You said: 'What the fuck's wrong with you?' To which she replied, 'Are you fucking serious, you restrained me, headbutted me all because I wouldn't have sex with you. Then I did it and you blew in me'. You responded with words to the effect of, 'You're mine I can do what I want, sorry'.
19.You went to bed and Ms Anderson went to sleep on the couch. As I have said – you are not to be sentenced for any alleged non-consensual sexual activity in relation to this incident – this exchange is relevant context to properly understand the circumstances relating to charge 2.
Second Incident – Charge 2
20.On Wednesday 17 July 2019, a couple of hours after the children were in bed, Ms Anderson began speaking to you about ending the relationship. You both spoke amicably for approximately an hour and began making arrangements for the children. You then asked Ms Anderson if you could have sex one last time and she told you, ‘no’.
21.The conversation became heated with you trying to persuade her not to end the relationship. You refused to leave the house, so she said she would leave. She got up off the couch and headed to the kitchen to get her keys. You beat her to it, grabbed the keys and told your victim to ‘get back in the fucking lounge room’.
22.Ms Anderson became fearful and told you to let her go and to give her the keys. She attempted to grab her keys from you. You pulled your hand back and made a fist by the side of your head and just stared at her. Ms Anderson said, ‘What are you going to do, hurt me?’. Again, this is all context. This is not charged conduct and you are not to be sentenced for it.
23.You picked up the black coloured stick vacuum off the floor and held it like a baseball bat in the air. You told Ms Anderson to take a step back so you could get a better swing at her. She said, ‘No, please don’t hurt me Arnold’. Again, that is context evidence only.
24.Ms Anderson was crying. She ran into the bathroom thinking it had a lock on the door, but it did not. She tried to barricade herself in with her shoulder and foot against the door, but you barged through. You told her to, ‘Stop being a fucking idiot and get out here'.
25.Ms Anderson pretended to follow you out and then ran to another bathroom and put herself against the bathroom door. You barged into the room behind her. You told her to sit on the couch. There was further manhandling and aggressive words and conduct from you.
26.You threatened her, which put her in considerable fear. Ms Anderson put her head in her hands and started crying. There were further words exchanged between you both and you got up off the mattress and stood over her. You made a fist with your left hand and said, ‘If you have sex with me, I will go. I will leave and you will never hear from me again’. She said, ‘Fine, I will have sex with you’.
27.Clearly, there was no free agreement. This lead up to the particulars of Charge 2, as I have said, is relevant as context only, as it properly sets out the circumstances which demonstrate the victim’s absence of free agreement and your understanding that she was not consenting. It is also relevant in assessing the circumstances in which she was overborn by your brutish demands and threats. That is the only basis on which these matters are relevant and you are not to be separately sentenced for this conduct.
28.You penetrated her vagina with your penis. You said ‘I want you to come.’ This is the commencement of Charge 2, rape being a rolled-up charge. Ms Anderson said, ‘No, just hurry up’. You pushed her so she was sitting upright on you and you continued to roughly penetrate her vagina with your penis.
29.Your victim tried to get off you, but you grabbed her wrists and continued the sexual penetration. You had her hands pinned against your chest and she tried to bite you to get free. You became angry and threw her off the bed on to the floor. More violence followed. You assaulted her.
30.Ms Anderson was cowering and terrified. You then introduced two fingers into her vagina and were being ‘really rough’ with your fingers. You said ‘I’m going to make you come. You know you love it’. That is part of Charge 2, the rolled-up charge.
31.Ms Anderson’s daughter walked in and said, ‘Are you ok mum? I’m just going to the toilet’. She had heard everything. Ms Anderson told her daughter that she, that is Ms Anderson, had just fallen out of bed.
32.Once your step-daughter went back to bed, you pushed Ms Anderson down straight away. She did not fight back as she did not want her daughter to overhear and she lay still. Once again, you got on top of your victim and lifted her legs up in the air. You then introduced your penis into her vagina and continued penetrating her until you ejaculated. That is also part of Charge 2, the rolled-up rape charge.
33.Ms Anderson pushed you off her as you were ejaculating and went to the toilet. She then got back into bed and you said, ‘Sorry honey, can I sleep with you?’, to which she said, ‘no.’ You were later arrested.
Forensic Examination
34.Ms Anderson was examined by Dr Ian Price at approximately 11.30 am the next morning. He observed:
a.A 2 x 1 cm area of redness on her right cheek, on her lower lateral inferior orbital margin;
b.On the inside of her right upper lip was an ulcer where the lip was in contact with the right upper incisor;
c.Tenderness in front of her left ear;
d.Tenderness over the occiput of the skull;
e.The entire right ear was redder in colour compared to the left;
f.A purple-blue 3 x 2 cm bruise over the anterior aspect of her right shoulder;
g.A graze in the anterior aspect of her right axillary fold, which she explained was caused by you pulling on her dressing gown;
h.On her right lower abdomen was a number of petechial bruises with four definitive areas, 1x5 cm in size, pointing in an upward and right lateral direction.
Record of Interview
35.You were interviewed on 18 July 2019 after receiving legal advice. During the interview you told police, that:
a.In relation to the events of 13 July 2019, you had asked to sleep with the victim and that she said no;
b.That you probably did put a hand on her vagina which she pushed away telling you to, ‘fuck off’;
c.You had prevented her from getting up and held her by the wrists;
d.You admitted she had struggled with you and bitten you on the thumb;
e.You denied deliberately head-butting her. Instead, you said, 'She’d come back and smashed me in the back of the head and smashed me in the face';
f.You agreed that you had had sex that night, but you said 'she didn't say no';
g.You asked Ms Anderson, ‘Well can we?'. She goes, 'Yes, as long as we go to fucking sleep after it', and then, yeah, I do remember her saying – I do remember her saying, 'Don’t come in me';
h.In relation to the events of 17 July 2019, you agreed that you told Ms Anderson, 'Just get back in the fucking lounge room and sit down' and that you were feeling upset that 'she’s always trying to fucking leave me' at that point;
i.You agreed that you held up your fists by your head to pretend that you were holding the keys in your fist and you said you 'wasn't gunna hit her'.
j.As she was going in the lounge room, you had the vacuum cleaner and you said, 'No, you're not leaving’, and I was holding it. You agreed, that would have looked quite aggressive;
k.You grabbed the vacuum cleaner again and you said, ‘She was holding onto the couch though and then I grabbed her dressing gown again and grabbed it - ripped, like a big - like so’.
36.In relation to 17 July 2019, you agreed that digital penetration and penile-vaginal penetration had taken place, but you stated, ‘I did not rape her, I’m not that kind of person'. You denied rape despite admitting the violent and threatening lead up conduct.
Objective Gravity
37.On any view, this is appalling offending. You subjected your partner to a painful, horrific, degrading and humiliating ordeal. You violated her savagely, without a care for her dignity, safety, wellbeing or human rights.
38.Rape is a very serious offence with a maximum penalty of 25 years. As the Court of Appeal has stated recently:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration'.[3]
[3]DPP v Alimadad Mokhtari [2020] VSCA 161 at [41]
39.Rape is a standard sentence offence. The standard sentence is 10 years imprisonment.
40.The objective gravity of your offending is high given the following. Importantly, it is significant that it is a rolled-up charge.
·The victim was raped more than once, with the rolled-up charge comprising three separate instances of penetration over a sustained period;
·The offending involved use of actual violence and threats of violence. The context of both charges, in particular Charge 2, is one of overt violence;
·The victim was injured in the course of the offending;
·You ignored protestations of her that she did not want to have sex with you;
·Your offending was overheard in part by your step-daughter who came into the room. The rape continued after you were aware that your step-daughter was awake;
·On 13 July 2019, the victim told you she had only had sex with you as you had restrained and headbutted her. Your conduct escalated on 17 July 2019, when you offended again in a more serious, violent manner, refusing to take no for an answer;
·The offending occurred in the context of your victim saying she wanted to end the relationship and refusing to have sex with you one last time. The Court of Appeal has stated that the context of domestic violence is important, particularly for general and specific deterrence.[4] All too often, we see in our community examples of men who are not only unable to accept that a partner wishes to end the relationship, but outright refuse to allow them to exercise that right. The controlling and violent conduct which often follows – is of great concern in our community – and far too often has devastating and long-lasting consequences;
[4]Forbes v Queen [2018] VSCA 341 at [42].
41.This case is an example of controlling and violent conduct borne out of an inability to accept and negotiate the end of the relationship - culminating in the heinous and devastating offence of rape. It is reprehensible conduct of the highest order and must be deterred and denounced.
42.The impact upon the victim also needs to be given proper weight in the exercise of my sentencing discretion.[5] Your victim states that she has had suicidal thoughts, has been diagnosed with anxiety, depression and PTSD, and is having counselling. The offending has also impacted the children, who are anxious and withdrawn.
[5]Gray (A Pseudonym) v R [2018] VSCA 163 at [53]; R v Mason [2001] VSCA 62 at [8].
43.I was told by the Prosecutor, Ms Guesdon, in her helpful submissions, that the gravity of detention for a sexual purpose has not yet been considered by an appellate court. However, it was submitted by the Prosecution that in the circumstances of this offending, it is a low to mid-range offence, whereby the victim was physically restrained and prevented from leaving for purpose of sexual penetration. This sexual penetration did occur immediately afterwards.
44.The rape charge and its circumstances are very grave and serious for the reasons I have set out. There is some mitigation available to you, however, that sets you apart from a perpetrator of such a heinous example of the crime of rape who may be more typical. You abused your physical dominance in an appalling way, as most rapists do. However, the circumstances of your relationship, your personal circumstances and the power imbalance between the two of you in the relationship was not so common.
Evidence of the relationship
45.The Prosecution describes the relationship as being of seven-years duration. This arises from the victim’s statement. It is common ground that your first child was born on 8 July 2013 when you were 17.
46.You have made a police statement that claims you were groomed and offended against by the victim when you were 14 or 15 years of age. The statement was tendered as Exhibit 5 on your plea. In combination with other materials relied upon, such as expert psychological reports, lay testimonials, and the depositions, I accept generally that from the outset of the relationship and throughout it, you were vulnerable to a degree of control and manipulation at the hands of your much older partner.
47.The testimonials and other material support a view that you were out of your depth in the relationship, which is unsurprising, and that your partner took control of matters such as your ADHD medication.
48.I am satisfied on balance that romantic overtures were initiated by the victim when you were 14 or 15, first over the telephone. Put another way, your victim showed a sexual interest in you when you were a child. Prior to you turning 16, a relationship of sorts seems to have existed. I have been unable to determine whether a sexual relationship commenced at that time, but as I observed during the plea hearing, for my purposes, it is neither here nor there.
49.I am satisfied that a sexual relationship and then a de facto marital relationship commenced when you were a child. Your victim was nine years older than you and more experienced in life, being already a young mother when she commenced the relationship with you. On one view, as a child, the argument could be made that you were under her care and supervision when you commenced co-habiting.
50.The net result is that you were vulnerable to her greater years and experience, and there was a power imbalance in the relationship. The nine-year difference is substantial when referable to a 15 or 16-year-old. Relationships of this nature often cause great harm to the younger party. So much is observed by these courts on a regular basis, in cases involving the sexual exploitation of children.
51.Were the age disparity in the relationship a matter that stood alone, its impact upon my assessment of the circumstances of the offending and your moral culpability would be limited.
52.In combination with the other factors that I have accepted on balance, the circumstances of the relationship takes on greater significance in my assessment:
· You were diagnosed with ADHD in Grade 3;
· You had difficulties at school and are dyslexic;
· You suffer hearing impairment and need hearing aids;
·You have been assessed as having cognitive deficits. Your intellectual functioning is low, where 98% of the population would do better than you;
·You became a stepfather at 16 and a father at 17. By the age of 20, you were the father in a household with three children. You worked to support the family;
· I accept, to some degree, that you were the subject of some manipulation and control in the form of management of your medication and access to hearing aids, particularly in the lead up to the offending;
· The relationship was your first sexual relationship. It has been your only experience of a relationship and your attitudes and strategies for dealing with conflict have been shaped within a relationship that commenced when you were a child.
53.The combination of these factors bears on my assessment of your moral culpability. These circumstances set you apart from the typical controlling adult male in a relationship, who dominates his partner and refuses to accept a victim’s right to end the relationship. That is not to say that your past conduct, and I am referring to the criminal history and your conduct before me, does not raise significant concerns regarding the danger you may present to women in our community into the future - particularly within a relationship.
54.As I have stated, you require specific deterrence, treatment and programs to ensure you never commit crimes of this type against another victim into the future. I must also denounce your conduct by the sentence I impose.
55.General deterrence applies in your case also. All potential perpetrators who may feel aggrieved within a domestic relationship and who lack the skills, intelligence, maturity and emotional control to relate to a partner or ex-partner in anything other than a violent and controlling way – must be deterred.
56.The sentence I will impose also recognises the matters I have set out that cast your offending in a different light from many other examples. Your experiences within the relationship, from a young age, played a significant role in shaping your personality and responses.
Personal Circumstances
57.Ms Wallace, on your behalf, filed a very helpful summary of submissions on the plea and spoke to those at the plea. I will now refer to that in relation to summarising some of your personal circumstances.
58.You were born in April 1996. You were aged 23 at the time of the offending and 25 years as of now or about to be. You are the younger of two sons. Throughout your childhood you suffered asthma and ear infections, which I am told led to nine to ten operations until you were 18 years of age and has resulted in you requiring the hearing aids. You were diagnosed with ADHD and dyslexia around Grade 3 and were initially treated with Dexamphetamine, then Ritalin and finally with Concerta.
59.You currently take Concerta whilst in custody, although it took some time to arrange for that to happen and that is a matter that submissions were made in respect of, and also your mother's testimonial refers to. You grew up in Keilor in Victoria, attending Primary School there up to Grade 4 and then in Tallangatta for part of Grade 5 until the completion of Grade 6. You had the assistance of an Integration Aide at your last school. You completed Year 9 in Tallangatta and then went to work on a farm in Western Australia for a few months. You then worked in abattoirs, dairy farms and factories until the time of your arrest. Your work history is impressive. You are clearly someone with great capacity for work.
60.Whilst in custody, I was told you have maintained work as a spray painter. You worked at the Tallangatta Meat Processing Plant prior to your incarceration. You have a good work ethic and this augurs well for your rehabilitation.
61.You had been under the care of two specialists, Glen Chuck and a Dr Jeffrey Swift, a psychiatrist, in the past. You were going to sessions in respect of those, although I was told that your view was that the utility of those sessions was limited due to your victim being present at those sessions as well and it resulting in falling out or fighting after the sessions. I will not go into any more detail in relation to the circumstances of your commencement with the relationship and the narrative of that relationship. It is set out in the materials including the materials tendered on your behalf, such as your statement and the testimonials.
62.Ms Wallace has placed significant emphasis on what is referred to generally as impaired mental functioning due to mental illness and also neurological impairment, being longstanding ADHD and the deficits outlined in reports of Dr Fratti and Dr Lechner, which were exhibited on the plea.
63.Dr Lechner opined that you suffer from adjustment disorder with depression. Her view was that you are cognitively, socially and emotionally immature, with a limited ability to engage in consequential and reflective thinking. You disclosed to Dr Lechner that you would get angry because the victim would say, 'I hate you, I'm taking the kids from you'. You would go fishing with Dad or a mate and ‘if I came home late, she'd crack it, then we'd have an argument and then have make up sex'. That was part of what you said to Dr Lechner.
64.You reported to Dr Lechner a history with the victim, initiating violence between you. You stated:
'Throughout the relationship there’s been a lot of fights between us…they could last five minutes or thirty minutes…. she'd say “I hate you” and send lots of negative text messages, then “I'm sorry” and then we'd have make up sex'.
65.You stated ‘Beth manipulates me, controls me, groomed me…I realised this in the last six months of our relationship. I've got no relationship skills…if she said “no”, it wouldn't happen'.
66.Dr Lechner reported that you stated that since being locked up, you feel like you are free and the relationship is a hundred per cent over. Dr Lechner conducted testing upon you and concluded that your performance placed you in the extremely low, borderline mildly intellectually disabled range of verbal intelligence, with approximately 98 per cent of adults performing better.
67.On administering the Kessler Psychological Distress Scale, which canvasses symptoms of depression, anxiety and inability to cope experienced by the respondent over the past four weeks, you achieved a score of 48, indicative of likely to be severely mentally unwell.
68.On administering the Beck Anxiety Inventory, the result was in the severe range. On administering the Beck Depression Inventory, you fell into the extreme range, which Dr Lechner opined was consistent with your presentation at interview and a diagnosis of clinical depression.
69.Dr Lecher further opined that you suffer adult ADHD. You have genuinely limited cognitive skills, at least in the verbal domain. You currently suffer symptoms of adjustment disorder with depression reactive to your current situation. She stated, 'ADHD is a permanent neurocognitive deficit'. Your condition is of sufficient severity to warrant pharmacological treatment. Your low level of verbal intelligence is also a permanent condition. She stated your current low mood is reactive to the changes and challenges of incarceration. Dr Lechner did suspect, however, that your mood was previously low in relation to the deteriorating nature of your relationship with Ms Anderson.
70.Dr Lechner stated that you appear to have difficulties in understanding that your interactions with your partner were different on the occasion the subject of the charges to other occasions. Clinical Neuropsychologist, Dr Sarah Fratti, similarly conducted an assessment of you. She opined that, based on your educational and occupational attainments in combination with performances on tests considered to be relatively resistant to neurological change and best test performances on the current assessment, your premorbid intelligence was conservatively estimated to fall within the Borderline/Low Average range, likely indicative of longstanding cognitive limitation.
71.Her assessment was that you obtained a Full Scale Intelligence Quotient of 77, which is at the six percentile, moderately below the level of similarly aged peers but above the clinical cut off for a diagnosis of intellectual disability. In addition, to considering your neurodevelopmental disorder, she also assessed your current state of mental health stating:
'Mr Vickers endorsed extremely elevated symptoms of depression, anxiety and stress on a self-reported mood screening questionnaire that was read to him'.
72.Ms Wallace submitted that your moral culpability should be reduced because of the particular constellation of mental health factors. I will return to that in a moment.
73.First, I will refer to some of the other matters relied upon in mitigation on the plea. Ms Wallace submitted that the context of the relationship commencing at such a young age was a relevant matter.. She relied upon the assertion that I have accepted on balance, that your victim regulated to some degree your mental health treatment and the physical disability of being deaf from the age of 14 until the time of the charge.
74.You are a youthful offender, and this is a significant matter conceded by the Prosecution. Ms Wallace submitted the priors are limited and were committed as a youth. They are relevant, as I have noted, and are relevant to, in particular, concerns about your propensity within a relationship to resort to either violence or emotional outbursts, but it is also relevant that they were committed as a youth.
75.Your plea of guilty, Ms Wallace submitted, was of the highest degree of utility. This is a circuit trial; it was a Wodonga matter that could not be listed due to Covid delays. Her submission was that there is substantial material supporting a defence at trial. I do not accept that in the terms that it is expressed, but the narrative set out in your interview, in combination with the expert evidence as to your cognitive functioning, may have provided some narrative to run a defence at trial. Beyond that, it is not a matter that I can take any further, save to say, the conclusion being, it is not a case where any prospect at trial is completely forlorn.
76.You have been in custody for nearly two years on remand and for the most part, in the circumstances of the Covid pandemic. The plea is very significant, as I stated, during the course of the management of this matter. In the current environment, cases such as this that would ordinarily have simply gone to trial, were able to be looked at in closer detail and you took the significant step of resolving the matter as a plea of guilty. The utilitarian value of that during the Covid pandemic has been much greater than at previous times because of the crisis in the trial list. I also take into account your experience in custody due to the Covid limitations, in particular, with visitations and the like.
77.Ms Guesdon, in her very helpful written submissions on the plea, referred to your prior convictions as being relevant, and I accept that, as I have stated. The Prosecution also made helpful concessions in relation to the plea of guilty, the Covid related delays and more particularly, the acceptance that you are a youthful offender. Those submissions of course were qualified with reference to proper authority. In relation to the psychological material, which I will use as the overarching term for the mental health issues and neurocognitive functioning, Ms Guesdon, on behalf of the Prosecution, helpfully accepted that Verdins limbs five and six may have some application, due to your cognitive limitations, adjustment disorder with depression and greater risk of being manipulated in a prison environment.[6]
[6]R v Mark Andrew Verdins (2007) 16 VR 269 (“Verdins”).
78.There were substantial written submissions made, however, challenging Ms Wallace's submission in relation to what is often referred to as limb one , in relation to a reduction of moral culpability. I am now referring of course to Verdins and that authority.
Application of Verdins Principles
79.It is clear that ADHD, low intelligence and other personality features formed during childhood and overlapping into the relationship, played a role in the offending. Recognising that is really doing no more than acknowledging the ingredients that have gone into the mix to make you who you are and which together have resulted in you having a very unsophisticated understanding of consent and free agreement, poor relationship skills, poor consequential thinking, concrete thinking, poor impulse control and poor processing of your emotional state.
80.As I have stated, Ms Wallace submitted that your moral culpability should be reduced because the particular constellation of mental health factors, combined with immaturity, demonstrate your capacity to understand the particular element of consent was impaired and compromised. In my view, it is difficult to undertake such a fine exercise and unscramble the ingredients, so to speak, in such a way. The whole is greater than the sum of its parts.
81.I have assessed your subjective culpability in light of all of the relevant personal circumstances. The constellation of mental health, cognitive functioning factors and immaturity are significant features, but the real mitigatory effect is only properly understood when all the relevant factors, including the circumstances of the offending and the circumstances of the relationship, are considered. It is the combination and relationship between these separate factors and how they have operated on you in combination that is significant.
82.This combination has resulted in substantial mitigation. Were this mitigation not available to you, the sentence I would have imposed upon Charge 2 would have been significantly higher, by an order of years.
83.I have had regard to the standard sentence of rape of 10 years as a guidepost. The sentence I have imposed for Charge 2 differs from that standard sentence for the reasons I have set out herein.
Sentence
84.I sentence you as follows Mr Vickers.
85.On Charge 1, you are sentenced to two years imprisonment. On Charge 2, you are sentenced to six and a half years imprisonment. Three months of the sentence imposed upon Charge 1 is to be served cumulatively on the sentence imposed on Charge 2. That makes a total effective sentence of six years and nine months. I set a non-parole period of three years and 10 months.
86.Now that, on my calculation, is lower than 60 per cent and I have set it at that level because I consider that it is in the interest of all sentencing factors that I do so, particularly having regard to your youth, your prospects of rehabilitation, which I have assessed as reasonable, your intellectual functioning and other factors in mitigation to which I have referred to at length.
87.I declare that you have served - is it 638 days?
88.COUNSEL: Yes, Your Honour.
89.HIS HONOUR: 638 days pre-sentence detention in relation to this sentence.
90.In relation to 6AAA, it is difficult in this case, as in most cases, to give a meaningful 6AAA declaration. In cases where there is a rolled-up charge, because I have of course sentenced you for Charge 2 on the basis of three incidents within the one charge, if you did not plead guilty, you would not have had the advantage of a rolled-up charge and of course sparing your victim the ordeal of trial, I know she was cross-examined in a limited way at the preliminary hearing, but the ordeal of a trial is something different again. And of course, the inability to demonstrate contrition and prospects of rehabilitation in the same way after a trial are significant matters. So as best I can, in relation to 6AAA, I indicate that but for your pleas of guilty, I would have sentenced you to be imprisoned for 10 years, with a non-parole period of seven years. Now are there any other orders I need to make?
91.COUNSEL: No, Your Honour.
92.COUNSEL: No, Your Honour.
93.HIS HONOUR: Thank you. Yes, we'll adjourn the court.
94.- - -
5
0