Director of Public Prosecutions v Weston (a pseudonym)
[2024] VCC 510
•22 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK WESTON (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2024 | |
DATE OF SENTENCE: | 22 April 2024 | |
CASE MAY BE CITED AS: | DPP v Weston (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 510 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Common law assault (2) – Intentionally cause injury (1) – Rape (rolled-up charge) – Use of telecommunication device to harass (Commonwealth charge) (1) – Aboriginal background - Offending committed against intimate partner – Incidents captured on CCTV footage - Aggravating features of offending – Accused told the victim not to tell the police – Victim’s daughter heard the assaults occur – Threats made to both victim and her daughter – No VIS made – Relevant criminal history in relation to breaching of Family Violence Intervention Orders - Last court appearance in 2014 – Disrupted and dysfunctional childhood – Adverse childhood experiences including physical and sexual abuse – Death of mother in 2022 caused deterioration in state of mental health including increased substance abuse – Poor state of physical health - Expert opinion – PTSD - Borderline personality disorder - Major depressive disorder – Severe substance abuse disorder – Equivocal evidence of mild cognitive impairment
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Biba v The Queen [2022] VSCA 168
Sentence: Convicted and sentenced to Total Effective Sentence 9 years’ imprisonment with a non-parole period of 5 years and 5 months’ imprisonment – Pre-sentence detention of 548 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6 AAA Sentencing Act 1991 (Vic) declaration made
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown (Plea) Mr T. White (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr T. McCulloch | SLKQ Lawyers |
HER HONOUR:
1Frank Weston (a pseudonym), you have pleaded guilty to two charges of common assault; one charge of causing injury intentionally; one charge of rape, which is a rolled-up charge; and one charge of using a carriage service to harass.
2The maximum penalties for these offences are as follows:
· common assault, five years’ imprisonment.
· intentionally causing injury, 10 years’ imprisonment.
· rape, 25 years’ imprisonment; and
· use a telecommunication device to harass which is a Commonwealth offence, three years’ imprisonment.
3I must have regard to the maximum penalties as these reflect the seriousness with which respective Parliament regard each of the offences which you have committed.
4Also, rape is a standard sentence offence which has a standard sentence of 10 years’ imprisonment. I will refer to this aspect a little later on.
5You were 42 years old at the time of the offending and you are now 43.
6The victim in this matter, Julianne Cayley (a pseudonym), was 46 years old at the time of the offending. Her daughter was 15 years old at the time of the offences.
7By way of background, you and Ms Cayley had known each other for about 10 years and had been in a relationship for about eight years. You lived together on and off for the majority of your relationship. You were an interstate truck driver.
8You began living with Ms Cayley on a permanent basis after your mother passed away in March 2022.
9Ms Cayley’s daughter, a child from a previous relationship, commenced living with you and the victim in about July 2022.
10You and Ms Cayley were engaged to be married in 2016, but you had never married.
11According to Ms Cayley you started on a downward spiral after your mother died and you had been depressed and suffering significant mood swings since that time.
12You had used cannabis throughout your relationship with Ms Cayley and you would use methylamphetamine very occasionally. However, after your mother died you began using methylamphetamine on a more regular basis, using every few days.
13I come now to the factual basis in relation to each of the charges.
Charge 1 – common assault
14I was told that one evening around the end of July 2022, you, Ms Cayley and her daughter were at your home address.
15You and Ms Cayley were arguing in the loungeroom, and her daughter was in the kitchen. The argument began to escalate when you started yelling at Ms Cayley. She was being submissive so as not to antagonise you. You then stood up from your chair, walked over to her as she was seated on the couch, and you hit her on the crown of her head with your coffee mug, causing it to shatter over her head and face. This conduct gives rise to Charge 1.
16The incident was witnessed by Ms Cayley’s daughter who quickly told you to stop. Ms Cayley felt immediate pain along with stinging and a burning sensation. She put a hand to her head and soon realised that she was bleeding.
Charge 2 – Common assault and Charge 3 – Causing injury intentionally.
17I was told that on Saturday 13 August 2022, at about 1.30am, Ms Cayley was at home with you and her daughter.
18Ms Cayley was sleeping in her daughter’s bedroom due to having an argument with you earlier in the evening. She was lying in bed with a migraine when she heard a loud bang. She walked into the kitchen area where she observed numerous broken crockery items on the kitchen floor. She began cleaning up the broken items, at which time you entered the kitchen and started to verbally abuse her. You then began throwing items from the bench, believed to be a tub of margarine as well as a Vegemite jar and peanut butter jar, throwing these at Ms Cayley’s head with force. This conduct gives rise to Charge 2, common assault.
19Shortly after this you walked over to Ms Cayley who was cowering on the floor. You then violently physically assaulted her, punching her multiple times to her face, arms and head, causing significant pain and bruising to her body and a suspected broken right hand and nose. However, as it happened, no fractures were sustained. I will refer to the injury that you caused in due course. This conduct gives rise to Charge 3, causing injury intentionally.
20You then walked away briefly and sat on the kitchen bench for a short while before picking up a piece of broken plate from the floor. You then walked back over to Ms Cayley who was still cowering in the cupboard area, and you held the edged piece of the plate to her throat and said, 'I’ll slit your throat in front of your daughter' This threat is not alleged by way of a charge but is part of the context in which the other offending occurred. I do not sentence you in relation to the threat as such, but I take it into account as context evidence.
21The incident to which I have just referred was heard by Ms Cayley’s daughter who was hiding in her bedroom. As a result of what she heard, she rang Triple 0 and asked for police assistance as she feared for her mother’s safety. At about 2.20 am, police arrived at your address. When you learnt of their attendance due to CCTV cameras outside your house, you said to Ms Cayley, 'if I found out your daughter called them, I’m going to slit her throat in front of you'. Again, this was alleged by way of context, and I do not sentence you in relation to this threat as such.
22You then told Ms Cayley to tell the police that everything was okay. Police spoke with you and Ms Cayley. She did not disclose any assaults to police as she was afraid of you and feared for the safety of her daughter. Therefore, no complaint was made by either the victim, or the daughter for that matter, and police left the address about five minutes later.
Charge 4 – Rape
23About 40 minutes after police left your house, Ms Cayley was in the laundry placing towels into the dryer. You walked up behind her, pulled her pants down and penetrated her vagina with your penis. She told you to stop, however, you continued for a short time before withdrawing your penis and leaving the laundry. The incident lasted for about two minutes and is the first occasion of rape comprising Charge 4.
24At about 3.20am, Ms Cayley was standing in the kitchen when you walked over to her, forcibly pulled her pants down, turned her around and pushed her onto the kitchen bench. You then pulled her dressing gown up slightly and exposed your penis from your dressing gown. You then began penetrating her vagina with your penis. You continued to do so for a short while before withdrawing your penis and walking away. This gives rise to the second occasion of rape comprised in the rolled-up charge, being Charge 4.
25This incident is captured via internal CCTV cameras at your house. Ms Cayley is captured on the footage appearing shocked and upset whilst you are walking away and covering yourself up with your dressing gown.
26Ms Cayley and her daughter both fled the address later that day at about 4.00pm and sought refuge at another person’s home.
27The basis for Charge 5 is that on 21 August 2022 you sent an explicit image via text message to Ms Cayley. The image depicted Ms Cayley’s genital area being penetrated by your penis. Accompanying the image was a text message threatening to send it 'out to everyone'. You sent further text messages to Ms Cayley saying that you would ask certain people if they would like to 'fuck that'. The messages were distressing for Ms Cayley and were sent by you with harassing and menacing intent. This conduct gives rise, in part, to Charge 5.
28At about 9.20am on 21 August 2022 you left a voice message on Ms Cayley’s mobile phone.
29The message was highly aggressive and abusive toward her and towards the end of the message, you said, 'Call me now, cunt, because when I come home - I’m going to be there in half an hour - I’m gonna burn the fucking house down, and if you’re not there I’m going to teach the people that are in there a fucking lesson. Fucking ring me mut, right fucking now'. This conduct also gives rise to Charge 5.
30Ms Cayley attended a nearby police station on Sunday 21 August and reported her allegations against you.
31The details of the police investigation are contained in the prosecution opening and I have taken these into account, but they need not be repeated in detail in view of your pleas of guilty.
32Suffice to say that the CCTV footage was seized by police and Ms Cayley’s daughter provided police with two videos depicting her mother with a swollen and bruised nose, face and right hand. The second video depicted what appeared to be blood on the floor and cupboard door at your home.
33Other evidence was gathered from relevant witnesses and details of this are set out in the crown opening. Again, I have taken these into account. One of the witnesses attested to Ms Cayley’s daughter telephoning her via Facebook Messenger on 13 August and during that call she could hear you and said that she could hear anger in your voice. She heard you say to Ms Cayley’s daughter, 'give me your phone cunt, give me your phone. If you were the one that called the cops you’ll be out'. This occurred at 2.27am.
34On Monday 22 August 2022 at about 12.00am, you were located at a post office address in regional Victoria and you were placed under arrest.
35Police commenced to interview you. However, this was suspended due to your level of intoxication and lack of sleep. The interview was recommenced at about 10.56 am.
36You took part in a record of interview where you said the following things:
a)that you thought you were in trouble for breaking the plates.
b)that you lost your temper and threw some plates.
c)in relation to the allegation of rape you told police to look at the CCTV and said that you did not rape the victim. You said that you had sex in the kitchen which you could see on the cameras. You said that she was saying 'give it to me' or words to that effect and that she never said no.
d)you admitted to previously throwing a cup at her but denied seeing any blood to her head. You denied hitting her. You admitted to making a general threat to cutting the throat of whoever called the police.
e)you denied having sex in the laundry, that it was only in the kitchen.
f)you denied threatening to burn down the house. You said that you had photos of you and the victim having sex, but you would not send them to others; and
g)you said you sent a text message to Ms Cayley saying, 'I’m sure [Ed] would like to fuckin’ find out about these'. I understand that the reference to [‘Ed’] is a reference to a former partner of the victim.
37On 23 August 2022 police took photos of injuries sustained by Ms Cayley. Medical examination conducted on that day indicated a bruise on her right arm, faint bruises on the forearms, no evidence of fracture and it was recommended that she rest and take analgesia.
38On 25 August 2022 Ms Cayley was reviewed by a medical practitioner as she had a painful and swollen left hand. An X‑ray was ordered of the area. There were no fractures, however, there was evidence of tenderness, and the hand was painful and swollen.
39On 6 September 2022 Ms Cayley had an X‑ray conducted on her nose due to swelling and the presentation of a lump on the top of her nose. Again, there was no evidence of fracture.
40Phone messages between Ms Cayley and you were downloaded, and these tended to confirm the nature of the remarks made by you to her which give rise to Charge 5.
41I note that in the course of your communications at one stage you were apologetic, but you then embarked on further offending giving rise to Charge 5.
42Mr Weston (pseudonym), your offending is most serious and deserving of a punishment which is just in all of the relevant circumstances and your conduct must be firmly denounced. Your conduct toward the victim was horrendous, with you behaving toward her in a most violent fashion, apparently whenever you felt the urge to do so. Your state of mind in relation to committing the offences of rape in the rolled-up charge in each instance was that you gave no consideration as to whether the victim was consenting or not, totally overriding her feelings in this regard. It is of grave concern that having assaulted the victim in a most dreadful manner and having had the police attend at your premises, rather than being deterred by police attendance you went on to rape the victim in the way set out in the prosecution opening.
43It is an aggravating feature of the assaults which took place on that occasion that you told the victim not to tell the police of your wrongdoing and a further aggravating feature that the complainant’s daughter could hear what you were doing to her mother in relation to those assaults. The threats that you made to the victim’s daughter were dreadful and of a most frightening nature. However, as I have previously made clear, I do not sentence you in relation to any particular threats that you made which are not the subject of any charge.
44Whilst you subsequently expressed some regret to Ms Cayley after reviewing the CCTV footage, you went on to engage in despicable conduct, which gives rise to Charge 5 on the indictment.
45Objectively, I regard your offending as most serious and but for Bugmy considerations I would find your moral culpability to be very high.
46There are no victim impact statements, though it takes no imagination to know that your offending against the complainant must have caused her harm. Clearly, she was very afraid of you, which assisted you in perpetrating physical violence toward her, including raping her.
47I take into account your criminal history which commences with various matters of a fairly minor nature in New South Wales, although in August 2006 you were convicted in relation to one charge of assault occasioning actual bodily harm, albeit that you were discharged in relation to this matter. You have a number of prior convictions for dishonesty matters, including burglary and theft, from 2002 onwards. In 2007 you were convicted of intentionally threatening serious injury and reckless conduct endangering serious injury, as well as unlawful assault and failing to answer bail. You received a 12-month community-based order and you were ordered to perform 100 hours unpaid community work, to undergo assessment and treatment for alcohol and drug abuse, as well as for mental health. You were fined in relation to the charge of unlawful assault.
48You breached the community-based order by subsequent offending and failing to comply with the community-based order, resulting in a wholly suspended sentence of three months’ imprisonment. In July 2010 you were convicted of contravening a family violence intervention order and you were sentenced to two months’ imprisonment which was wholly suspended. You were also convicted of threatening to inflict serious injury and you were fined $500. There was a notation in relation to that court appearance that the 'victim now forgives and supports the offender'. I understand that this is a reference to a previous partner.
49In May 2013 you were dealt with for five charges of contravening a family violence intervention order and four charges of contravening a final family violence intervention order, as well as burglary, theft and obtaining financial advantage by deception. You were sentenced to a total effective sentence of 12 months with a non-parole period of six months. On 17 May 2013 you were convicted in relation to three charges of shop theft and three further charges of contravening a family violence intervention order. You received a total effective sentence of three months which was cumulative upon the sentence imposed on 14 May, to which I have previously referred.
50On 22 October 2013 you were dealt with for contravening a family violence intervention order and were sentenced to four months’ imprisonment which was wholly suspended.
51On 20 November 2013 you were convicted of shop theft and sentenced to one month imprisonment to be served concurrently with sentences you were undergoing.
52On 9 October 2014 you were dealt with for contravening a suspended sentence order made on 22 October 2013. However, no further order was made.
53On that same day you were dealt with for two charges of breaching a prescribed condition of parole whereby you were convicted and fined an aggregate of $2,000. You were also dealt with for unlicensed driving, but you were convicted and discharged in relation to this matter.
54You have had the benefit of community-based or community corrections orders at various times, as well as suspended sentences. You have breached some of these dispositions along the way, although not all of them.
55Whilst it is true that you have little in the way of prior offences for violence and certainly you have no prior matters for sexual offences, as the learned prosecutor said at the plea hearing, you do have a criminal history in relation to breaching family violence intervention orders in respect of threatening violence as well as a prior matter in 2007 for recklessly engaging in conduct placing another in danger of serious injury. I understand that these prior matters relate to previous intimate partners which is a matter for concern and relevant when sentencing you.
56However, I have also factored in that prior to the offending for which I now sentence you, your last court appearance was in October 2014.
57I take into account your background which is set out in detail in the report of Ms Rebecca Fakhri, psychologist, dated 6 October 2023.
58You are of Aboriginal background on your mother’s side. You first learnt of this when your mother died in 2022.
59You were brought up in regional Victoria. Your parents separated before your birth due to your mother’s infidelity You had no relationship with your father until you were nine years old.
60Your mother had several different partners, most of whom were abusive to her and to you. When you were five you were sexually and physically assaulted by one of your mother’s partners. His name was 'Bob'. Your mother was aware of this but did not end the relationship. This particular partner would often assault your mother.
61When you were six you and your three siblings moved with your mother to Queensland as your mother had re-partnered again, this time with a man called Don. It became evident that Don was involved in criminal activity, including robbing banks, and was subsequently arrested. You had regarded this man as your father and had shared a positive relationship which continued whilst Don was imprisoned, and you sent letters to each other during this period.
62When you were nine you returned to regional Victoria where you were introduced to your biological father.
63You built a positive relationship with him, and you would often go on “adventures' together. As at the time of the report by Ms Fakhri you had recently ceased contact with your biological father due to your substance abuse as he had been disappointed by your behaviour in recent years.
64You commenced living with your biological father from the age of 12, living with him in his caravan in northern Victoria. However, when you were 15 you had a dispute and you returned to your mother’s house in regional Victoria. Your mother recommenced a relationship with a previous partner, who I understand was Bob, who had been violent toward you, and you were forced to leave your mother’s home after disputes between you and him. You would often intervene to defend your mother when Bob would become abusive which resulted in a physical altercation.
65After leaving your mother’s home you began couch surfing, living with friends and strangers that you met on the street. You were exposed to substance use early on. You were homeless from the age of 16 until the age 32. You would live in motels from time to time but otherwise you would sleep on the streets or in your car.
66According to you, you and the victim lived in a rental property in regional Victoria since 2014, but due to medical problems and being unable to work neither of you could afford to live in that rental property and you were provided with emergency housing in another regional Victorian centre.
67Interestingly, you describe your older sister as a 'drug fucked dickhead' as she reportedly used substances and was unemployed. You told Ms Fakhri that you paid for her children’s education as she was unable to do so. Your mother has two dependants to one of your stepfathers and they are aged 26 and 27. You reported that one of these uses methamphetamine and often contacts you for money.
68Since your mother died in 2022 you have had no contact with your siblings, although you are unaware of the exact reason for your mother’s death. Bob told you that she had died, and you harbour resentment towards your siblings for not telling you about your mother’s death as she had been unwell for several days before this. You also experienced feelings of guilt as you did not have your mobile phone with you at a time when you might otherwise have learnt that she was dying, and you were most upset that you had missed the opportunity to say goodbye to her.
69In terms of your education, you completed Year 11 at school and commenced Year 12. However, you failed Year 12 as you did not apply yourself. You described yourself as being a good student. However, you were reportedly suspended in Year 8 for fighting with other students.
70Throughout your schooling you apparently struggled to maintain concentration and attention, although you attributed this to constant relocation which was an unfortunate feature of your schooling over the years in line with you moving around a good deal, as previously mentioned. I was told that while you were at school you worked at a fish and chip shop in order to help make ends meet.
71When you were 20 you were offered an apprenticeship in Sydney in roof plumbing. However, after two years you returned to northern Victoria as you missed your friends. You completed your apprenticeship but did not work long in this field. You commenced truck driving which you reported to Ms Fakhri endured until 2020. You said that you left your job as you were working night shift and disliked the limited routine as you were constantly driving to different locations.
72Since 2020 you have not worked and have been in receipt of Jobseeker payments, as you reported to Ms Fakhri. You reported that you felt unmotivated to work after the death of your mother which occurred, as I have said, in 2022. You have since worked in the bakery whilst on remand and you have been involved in delivering food to other inmates.
73You reported to Ms Fakhri that you are interested in becoming a support worker when you are released from custody as you enjoy helping young kids.
74You have had a number of intimate relationships over your life with the first being when you were 16 years old. That relationship lasted three years. Then you have had a two-year relationship with another young woman. You said that your ex-partner on this occasion was a police officer and you said she often caused problems in your relationship. A family violence intervention order was put in place. You reported that this occurred after you found some images on her phone and questioned her about who these were taken for. You said that your then partner felt that you were going to become angry and called the police, leading to the family violence intervention order in that case being placed to protect her. You breached the family violence intervention order by contacting her several times.
75When you were 23 you had a relationship with another woman and reported that you had become engaged. However, the relationship ended after this person had an affair with a friend of her brother's. You became angry and threw a bottle of alcohol at him. You were then charged with assault and the relationship ended, with this young woman obtaining a family violence intervention order against you.
76After this you met your next partner through employment and described your relationship with her as positive. You had two children with her who, at the time of the report of Ms Fakhri, were 16 and 15 years old. Your children live with their mother, and you reported to Ms Fakhri that you had fortnightly visits with them and occasionally weekly. You denied any violence in that relationship and said that you and your former partner maintained a positive co-parenting relationship.
77You entered a relationship with Ms Cayley when you were 33 and said that this was a positive relationship, denying any physical violence other than the offending for which I now sentence you. You described an incident in 2014 where you and the victim had a verbal altercation and neighbours called police, but you denied any family violence intervention order being put in place as a result. As previously stated, you became engaged to be married in 2016 but you never actually married.
78Ms Cayley has two children from a previous relationship, who at the time of Ms Fakhri’s report were aged 18 and 16, the 16-year-old being referred to in the course of your offending for which I now sentence you. You reported to Ms Fakhri that you regarded these children as your own as you had raised them from a young age. You said you were close to the victim’s children and that they referred to you as 'dad'. In keeping with Ms Cayley’s observations, you described a deterioration in your relationship with her after the death of your mother, saying that each of you increased your substance use and this would often result in disputes.
79You said to Ms Fakhri that you had had '10 beautiful years together' and you would love to salvage that. However, you are unsure if you could forgive her for the current allegations. I pause here to raise concern about this aspect, noting that you told Ms Fakhri this in September last year. This displays a lack of remorse and there is an element of victim blaming on your part at a fairly late stage in these proceedings.
80You told Ms Fakhri about a close friend who you had known for three years and who has been a positive influence in your life. She does not abuse drugs or alcohol and you said you intend to live with her when you are released. You expressed an interest in commencing a romantic relationship with her as she has been your main support. You have described your other friends as negative influences who use substances. You have said that you find it difficult to form close relationships, stating that you do not let people too close to you.
81Ms Fakhri made certain findings in relation to your mental health and other matters. In order to clarify some aspects of your mental health, a neuropsychological report was obtained from Dr Laura Anderson. It is dated 12 November 2023. Having had regard to the neuropsychological report and psychological report, to which I have just referred, it was felt necessary for some matters to be further explored. As a result, a psychiatric report was obtained prepared by Associate Professor Danny Sullivan which is dated 23 February 2024. He met with you via video conference on 15 February this year for a 75-minute interview.
82Associate Professor Sullivan found that you had a developmental and adult history consistent with complex post-traumatic stress disorder. He said:
'This diagnosis requires that the diagnostic criteria of post-traumatic stress disorder are met, but also accompanied by significant emotional dysregulation, chronic disturbances of identity and self-esteem and interpersonal difficulties particularly evident in relationships.
Mr Weston (pseudonym) reports exposure to traumatic events including a disrupted childhood, including sexual abuse and exposure to traumatic experiences in adult life, most recently of being assaulted in prison. He experiences intrusive recollections and altered behaviour with hyperarousal and marked distress.
I agree with Dr Anderson that he would also satisfy at least some of the diagnostic criteria of borderline personality disorder. These include issues in relationships, issues with his identity and family, mood instability and suicidal ideation. There is some overlap in features of borderline personality disorder and complex post-traumatic stress disorder, but self-harm and suicidal ideation are not diagnostic criteria for the latter diagnosis. I did not consider there to be significant evidence of other personality disorder, in particular antisocial personality disorder.
At the time of my assessment he would also have met criteria for a major depressive disorder, which remains symptomatic despite treatment with an appropriate antidepressant medication.
Mr Weston (pseudonym) would also meet criteria for a severe substance disorder with chronic cannabis use, mild tobacco use, and more recently, problematic methamphetamine use. This is currently in remission in a controlled environment.'
83Although the information provided did not describe your substance use at the time of the alleged offences, Associate Professor Sullivan said:
‘Mr Weston (pseudonym) reported intoxication with methamphetamine, cannabis, and alcohol. His alleged behaviour is consistent with this, involving aggression, disinhibition and sexual arousal.'
84He went on to observe that there was perhaps equivocal evidence of mild cognitive impairment and he said effectively there was insufficient information to determine whether you had suffered from foetal alcohol spectrum disorder. (Paragraphs 62–67; 69).
85Associate Professor Sullivan went on to say:
“…I consider that there was likely a partial causal association with complex post-traumatic stress disorder and mood disorder. The association is most strongly mediated through substance abuse. Complex post-traumatic stress disorder and depression predispose to problematic substance use, particularly when associated with adverse childhood experiences. This is often a maladaptive effort to remedy the situation (‘self-medication’) but unfortunately tends to exacerbate anxiety and lowered mood due to recurrent withdrawal and intoxication, and also to reduce the person’s capacity to employ adaptive coping mechanisms.
I consider it likely – accepting Mr Weston’s (pseudonym) account of his intoxication – that intoxication was more strongly associated with his aggression, threatening and humiliating behaviour, and … with sexual violence.
The effect of intoxication would have been to impair his capacity to think clearly and make calm and rational choices, reduce his capacity to exercise sound judgment, and to disinhibit him. …
While there may be a partial direct contribution of mood disorder, complex post-traumatic stress disorder (PTSD) and borderline personality disorder to the offending, I consider these of less relevance compared to the effect of intoxication. These disorders may reduce the capacity for sound emotional regulation and reduce capacity for trust, but they are less important than intoxication, particularly with methamphetamine and alcohol.”
86He went on to say that incarceration was weighing more heavily on you due to your mental health disorder and that you had reported being fearful and avoidant in several situations in prison, although you had found opportunities for meaningful activity which had helped you to cope better.
87He also noted that you had been in poor physical health which may also impact on your psychological adjustment disorder with mixed anxiety and depressed mood significantly.
88I take into account in a general way, the various reports which were tendered on your behalf in respect of your mental health.
89After Associate Professor Sullivan’s report was obtained, your counsel submitted that he relied on Bugmy principles in a general sense, submitting that there ought be modest reduction in your moral culpability and the weight attaching to general deterrence “having regard to the personal characteristics, the background of trauma, the diagnosis of PTSD which informs the relevance of substance use in how Mr Weston (pseudonym) came to act in which I submit is an out of character way for him.” (see transcript of Sentence Indication Hearing dated 6 March 2024 at page 9 lines 16‑22.)
90Your counsel submitted that only Verdins principles 5 and 6 applied in your case, submitting that because of your impairment of mental function time in custody would be harder for you and there was the potential for further deterioration in custody.
91I accept and give full weight to your deprived background in a general way in accordance with Bugmy principles and I make modest reduction in your moral culpability and the weight which would otherwise attach to general deterrence. Without application of Bugmy, strong weight would attach to general deterrence, however, I make a modest reduction in this respect and in respect of your otherwise very high moral culpability.
92I also allow that time in custody has been and will be harder for you because of your mental health issues and the potential for your mental health to deteriorate.
93Further, I allow that time in custody has been and will be harder for you due to your various medical issues which have led to a colonoscopy being conducted which proved to be inconclusive. At the plea hearing I was told that you had been coughing up blood which then led to various forms of medical investigation. However, you have now declined the recommended bronchoscopy as this would necessitate you being transferred to Port Phillip Prison. You instructed your counsel that you had been to Port Phillip on a number of occasions, and you considered that the conditions there were too onerous for you. You are also in the course of having much needed dental work performed – your top teeth have now been removed and replaced by dentures and, as at the plea hearing, you were waiting for your bottom teeth to be cleared in order for dentures to be inserted. Also, you had suffered a spider bite which had necessitated a good deal of medical attention and wound care. You have now received reading glasses which enable you to pursue reading as a pastime and to assist you in daily activities. Although you have a number of your medical needs being attended to, I do accept that time in custody has been and will be harder for you because of the various medical issues that you experience and as well as to the other matters to which I have referred in the course of my sentencing remarks.
94In all the relevant circumstances I allow for a fairly significant discount in your favour relating to the stage at which you pleaded guilty to these offences. Although you did not enter pleas of guilty at the earliest reasonable opportunity and it was only after a sentencing indication in this court that you entered pleas of guilty, I have also factored in that you did not conduct a contested committal hearing in the Magistrates’ Court, albeit that you indicated pleas of not guilty at that stage. However, in not running a contested committal hearing you saved the witnesses the time and trouble of giving evidence and the community the time and expense of a contested committal hearing. Further, you have saved the victim the time and trouble of giving evidence including in relation to any pretrial examination of her evidence, and you have saved all witnesses including the victim the time and trouble of giving evidence at trial and the time and expense the community that a trial would necessitate.
Although there is no longer a backlog in trials in this court due to COVID, I make some allowance in your favour in keeping with Worboyes, in view of Biba v The Queen [2022] VSCA 168.
95I have some difficulty in accepting that you have heartfelt remorse for your offending and insight in relation to the seriousness of it, as reflected in the utterances to Ms Fakhri amounting to victim blaming to which I have previously referred. It is true that following your offending at one stage you expressed regret to the victim having viewed the CCTV, however, this must be seen in the context of you then reverting to the conduct giving rise to Charge 5 on the indictment. The stance that you have taken until accepting the sentencing indication is not consistent with being remorseful. I do accept that you have said to Ms Fakhri that if you had asked for help you would not have made “these mistakes” and that you would have dealt with how you were feeling, saying that you did not wish to be the kind of person who goes in and out of gaol. This reflects a degree of insight and regret on your part; however, you have a good way to go in this regard in my view. In making these remarks, I am mindful of the mental health issues that you suffer which might well impact your ability to experience and express remorse and insight in a sustained manner.
96Whilst on remand you have completed numerous courses and programs which is evidenced by the many certificates which were tendered on your behalf. Some of these related to dealing with substance abuse issues, including a certificate in respect of your regular attendance with NA. A number of these related to wellbeing, cultural and self-awareness issues whilst others related to training in an array of disciplines including traffic management, CPR and food handling. You have certainly used your time whilst on remand in a productive way, which is a matter in your favour.
97You have also been drugging free which is apparent from the urine screens tendered on your behalf.
98I have also factored in the letter from Mr Natoli-West, Wathaurong Aboriginal Co-operative dated 10 July 2023, who has indicated his preparedness to give you necessary support upon your release into the community so as to ensure as best he can that you make a smooth transition.
99Taking into account your offending, your criminal history (bearing in mind my various findings about this), your mental health issues and substance abuse issues, as well as the level of your remorse and insight, but also factoring in your pleas of guilty, positive steps you have taken whilst on remand and your past work ethic, I assess your prospects of rehabilitation as guarded. I place fairly solid weight on specific deterrence and protection of the community.
100As I have previously said, the standard sentence for the offence of rape is 10 years’ imprisonment. The Sentencing Act 1991 provides that this is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence is in the middle of the range of seriousness.
101In view of all of the objective factors in your case, I consider that your offending insofar as the rolled-up count of rape is concerned is above mid-range, as it comprises two instances of rape and these occur after you have previously assaulted the victim and after the police attended. In this context, I take into account the standard sentence of 10 years’ imprisonment, noting that this is but one factor to consider in arriving at an appropriate sentence in accordance with my instinctive synthesis.
102I have also had regard to current sentencing practice, noting that this is another sentencing consideration, but is also not a controlling one.
103I have also borne in mind that you accepted the sentencing indication previously given, but I have also taken into account your counsel’s submissions and further material provided since that time.
104Further I have applied the principle of totality in sentencing you.
105You are convicted of the offences and sentenced to the following periods of imprisonment:
106Charge 1: 10 months
107Charge 2: 6 months
108Charge 3: 18 months
109Charge 4: 8 years 6 months (which will be the base sentence)
110Charge 5: 3 months which will commence today.
111I direct that 2 months from the sentence on Charge 1 and 4 months from the sentence on Charge 3 be served cumulatively with the sentence on Charge 4, giving a total effective sentence of 9 years and I direct that you serve 5 years 5 months before becoming eligible for parole - I note that this is approximately 60 per cent of the head sentence - I do not consider that it is in the interests of justice to impose a shorter non-parole period than this.
112The sentence that I imposed for Charge 4 relates to the standard sentence by being 1 and half years less than it - I have imposed this sentence in view of all of the matters to which I have referred in my sentence and the weight that I have given to all relevant sentencing considerations.
113If not for your pleas of guilty I would have sentence you to a total effective sentence of 12 years imprisonment with a non-parole period of 9 years’ imprisonment.
114I declare that you have already served 548 days.
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