Director of Public Prosecutions v Williams
[2022] VCC 2121
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00077
CR-22-01556
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL WILLIAMS |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 NOVEMBER 2022 | |
DATE OF SENTENCE: | 2 DECEMBER 2022 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2121 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sexual assault, rape, common law assault, breach parole condition, drive whilst disqualified
Legislation Cited: Sentencing Act 1991
Cases Cited:Wati Marrah v The Queen [2014] VSCA 119; R v Mason [2001] VSCA 62; R vVerdins & Ors (2007) 16 VR 269; Allen v The Queen [2021] VSCA 249; Wright v The Queen [2021] VSCA 243, DPP v Serin [2020] VCC 1190 and DPP v Dao Thi Dat [2020] VCC 344
Sentence: Total effective sentence of 7 years and 4 months imprisonment with 5 years before being eligible for parole. 1172 days reckoned as having already been served.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. C. McConaghy | Office of Public Prosecutions |
| For the Accused | Mr. A. Waters | Victoria Legal Aid |
HER HONOUR:
1Daniel Williams you have pleaded guilty on Indictment K12432285.4 to two charges of sexual assault and one of rape.
2In sentencing you for those crimes, I am obliged to have regard to the maximum penalties which attach to each of the offences you have committed. Sexual assault carries a maximum penalty of 10 years imprisonment and rape carries a maximum penalty of 25 years imprisonment.
3In addition, rape is a category 1 offence pursuant to the Sentencing Act 1991. Section 5 (2G) of that Act requires the imposition of a custodial order for this offence unless an exception applies.
4The offence of rape is also one which is subject to the standard sentencing scheme. The standard sentence for the offence of rape is 10 years imprisonment. I will return to this at a later stage.
5You have pleaded guilty on Indictment K12432285.3 to two charges of common law assault.
6Again the maximum penalty is relevant to the sentencing exercise. Common law assault carries a maximum penalty of 5 years imprisonment.
7You have also pleaded guilty to two related summary offences, those being summary Charge 6 – drive whilst disqualified and summary Charge 7 – breach of a parole condition.
8The charge of breaching a parole condition has a maximum penalty of 3 months imprisonment and driving whilst disqualified has a maximum penalty of 2 years imprisonment.
9The maximum penalties reflect the seriousness with which Parliament regards each offence.
10I now turn to your offending.
The offending
11The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea Hearing' dated 8 September 2022. This is an agreed document in which you accept the elements of the offences to which you have pleaded guilty. This document also forms the factual basis on which I am to sentence. I have had recourse to the entire contents of that document.
12
In short compass, you commenced a relationship with the victim, Irene Marr[1] around September 2016. She and her two children moved into your address between April and June of 2017. From November of that year, you and Ms Marr no longer resided together but were involved in what was described as an
'on-again, off-again' relationship.
[1] A pseudonym.
13On 22 February 2019 you were released from custody on to parole. That parole order expired on 23 April 2019. A condition of that order included that you were 'not to contact directly or indirectly [Irene Marr].'
Indictment K12432285.3
14On an unknown date in March 2019, you and Ms Marr arranged to have dinner together. You arrived late and were affected by alcohol. An argument developed. During this argument you grabbed the victim by her throat, pushed her down onto the couch and told her to 'shut up'. These facts form the basis for summary Charge 7, breach parole condition, and Charge 1 on Indictment K12432285.3, common law assault.
15On an unknown date in July 2019, you arrived at the victim's address asking for a lift. Ms Marr agreed to drive you. An argument developed. You wanted the keys and a scuffle ensued. When Ms Marr went to walk away you grabbed her and head-butted her in the face. This act broke her sunglasses and caused a cut to her forehead. These facts form the basis for the second charge of common law assault on Indictment K12432285.3
Indictment K12432285.4
16Referred to as context, in August 2019 you began attending the victim's address around midnight almost nightly. You would knock on the doors and windows. Ms Marr was scared and would not open the door.
17On 29 August 2019, Ms Marr returned home around midnight after having dinner with her sister. As she unlocked the front door you suddenly appeared behind her and followed her into the premises. You were told to leave but refused.
18You stated that you wanted to talk. You questioned the victim about the involvement of Department of Health and Human Services and a pending intervention order application. She continued to tell you to leave.
19You tried to kiss Ms Marr but she told you to 'get the fuck off me'. You stopped but starting arguing. You again tried to kiss Ms Marr who said 'no, get the fuck off'. At this point you put your hand over her mouth and you told her to 'shut up'.
20Ms Marr then went to the bathroom upset and crying. You followed her, grabbed her jaw and again tried to kiss her.
21You then groped Ms Marr’s breasts under her top and over her bra and tried to remove the bra, however she resisted. These facts form the basis for Charge 1, sexual assault, on Indictment K12432285.4.
22You stated to the victim 'c'mon let's just fuck', but Ms Marr continued to cry and was telling you to get off her.
23You then put your hand down her pants, beneath her underwear and rubbed her vagina. She screamed at you saying that she had her period. She told you to stop. These facts are the subject of Charge 2 on Indictment K12432285.4, sexual assault.
24You used your elbow to push Ms Marr on her back and force her down. By this point she was crying hysterically. When she told you to get off her, you told Ms Marr to 'shut up'.
25You then inserted your fingers into her anus which you did, in and out, for about 3 minutes. You did not stop when she told you that it was hurting. Instead, you again told her to 'shut up' and that you 'wanted to fuck'. These facts are the basis for Charge 3 – rape.
26You told Ms Marr that you were taking her to your house. She refused and was still crying but ultimately relented after a brief struggle. You took her to your address in Traralgon via motor vehicle, with you driving. At this time your license was cancelled and this fact is the subject of summary Charge 6, driving whilst disqualified.
27You let the victim leave the following day around 7:30 am in order to go to work.
28You were interviewed by police on 17 September 2019 and denied the allegations put to you. You did admit to breaching a condition of your parole by having contact with the victim and to driving a motor vehicle whilst disqualified.
Offence gravity and victim impact
29You have a history for driving whilst disqualified and a history for failing to abide by parole conditions. This represents an inability to abide by court orders but neither of these offences are at the higher end for offences of their type in the facts as outlined before me.
30The same description does not fit the offending the subject of the two indictments.
K12432285.3
31Turning firstly to Indictment No.K12432285.3, the two offences are clearly offences of violence against an intimate partner.
32Each occurred in the context of unexpected violence by you. Grabbing the throat area is inherently dangerous and is of great concern in relation to your future risk.
33The incident where you head-butted Ms Marr to her face also carries obvious risks and occurred in circumstances which gave her little or no opportunity to defend herself. She had been trying to walk away from you and your aggression.
34Unfortunately, you have a history for violence in a similar context against Ms Marr and a former partner.
35In a decision of Wati Marrah[2] the Court of Appeal emphasised the need for general deterrence for family violence, stating that:
“The sentence must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.”
[2] Wati Marrah v The Queen [2014] VSCA 119
36Court of Appeal authorities have continued to reinforce that general deterrence, denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing offenders who commit family violence.
K12432285.4
37Sexual assault is a charge which naturally describes a wide range of offending behaviour as, of course, does the charge of rape. Each are inherently serious offences. The offence gravity of the offending must always depend on the individual circumstances of the case.
38The offending the subject of Indictment K12432285.4 is extremely serious and has also occurred in the context of family violence and with the background of the violence you had already perpetrated against Ms Marr. It occurred in the context of relationship breakdown and your regular and unwanted attendances at Ms Marr’s premises in the months leading up to the events of 30 August 2019.
39Your offending overall represents a frightening display of physical power and desire for dominance over your former partner.
40Sexual assault offences in a family violence context understandably also emphasise deterrence as a paramount sentencing consideration. It was observed in R v Mason[3]:
“In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification.”
[3] R v Mason [2001] VSCA 62 at [8]
41You were well aware of Ms Marr’s disinterest in pursuing a relationship with you.
42However I do not form the view that your offending of 30 August 2019 was in any way planned by you but unfolded when Ms Marr was understandably unreceptive to your presence in her home at midnight and your continued questioning of her.
43Your manner was aggressive, threatening and undoubtedly frightening. You would not take 'no' for an answer. Whilst part of the one occasion- a factor which much be reflected in the degree of cumulation between charges -, each event is the subject of separate charge and each occurred when you had been told to stop, were aware of Ms Marr’s acute distress, and yet carried on regardless from one charge to the next, culminating in the offence of rape involving your penetration of her anus with fingers. The circumstance of that charge included you forcing her to the ground making her even more vulnerable and was somewhat protracted given it was a 3-minute episode.
44Whilst I accept that the nature of this particular offence of rape occurred in circumstances where there was no risk of pregnancy and perhaps not of disease, it is also clear that digital rape is not to be regarded as less serious than other forms of rape.
45Whilst no victim impact statement has been tendered, I accept that Ms Marr is likely to have suffered physical impact from your offending the subject of each indictment and likely psychological impact. Your offending, the subject of indictment K12432285.4, occurred in Ms Marr’s own home, an environment in which she was entitled to feel safe and secure and an environment in which you knew you were not welcome. I have little doubt that she would have been terrified of you during this incident.
Prior convictions
46Your prior criminal history is an unenviable one, and, unfortunately, in many ways, a relevant one.
47It commences in the Moe Children's Court on 14 November 2001 for charges of exceeding the prescribed concentration of alcohol, learner driver without experienced driver and driver without L plates displayed. There are some 16 court appearances post that date for a range of offending which does include driving offences, drug possession, breaches of court orders, dishonesty, property damage and violence.
48You have no prior history for sexual offending but whilst sexual in nature, I have characterised the offending on Indictment K12432285.4 before me as all occurring in the context of family violence.
49Only referring to the court appearances with more direct relevance to my sentencing exercise, on 13 August 2002 you appeared at the Moe Magistrates Court for a charge of unlawful assault and were convicted and sentenced to one months' imprisonment, wholly suspended for a period of 12 months. You appealed that decision. On 15 November 2002, your appeal was successful and the Morwell County Court placed you on a community-based order for a period of two years.
50On 17 March 2003, you appeared at the Moe Magistrates Court for charges of criminal damage, unlawful assault, make false report to police and driving whilst disqualified. On that occasion you were convicted and sentenced to one months' imprisonment wholly suspended for a period of 12 months. You were also placed on a corrections order for a period of 12 months.
51On 10 May 2004 you appeared at the Moe Magistrates Court in relation to a range of offences, which included a breach of the suspended sentence order from the Moe Magistrates Court of 17 March 2003. In addition, you appeared for charges of drug possession, possess ammunition without a license, use unregistered motor vehicle, theft of motor vehicle, assault in company, torture/beat an animal and recklessly cause injury. You were convicted and placed on a community corrections order for a period of 12 months with treatment conditions.
52On 24 October 2005, you again appeared at the Moe Magistrates Court for offending which included charges of failing to comply with community-based order. You were also dealt with for three charges of driving whilst suspended, four charges of unlawful assault, recklessly causing injury, three charges of breach intervention order and four charges of exceeding the prescribed concentration of alcohol. You were convicted and sentenced to 6 months imprisonment wholly suspended for a period of 12 months in addition to financial penalties and licence disqualification. You were also placed on an adjourned undertaking for a period of 12 months.
53On 11 July 2007, you appeared at the Latrobe Valley Magistrates Court for breaching the suspended sentence order on which you were placed on 24 October 2005. You were also dealt with for charges of recklessly cause injury and harassment of a witness. The suspended sentence was reinstated. In total, you were required to serve a sentence of six months imprisonment. This would appear to be your first period of imprisonment that was required to be actually served.
54On 30 August 2010, you appeared at the Melbourne County Court in relation to charges of aggravated burglary and recklessly cause injury. You were convicted and released on an adjourned undertaking until 30 August 2011. You were required to participate in services specified in a justice plan.
55You received two months imprisonment wholly suspended for a period of 12 months for a charge of make threat to kill at the Latrobe Valley Magistrates Court on 17 November 2010.
56On 22 March 2012, you appeared at the Latrobe Valley Magistrates Court. This appearance included eight charges of contravening a family violence final intervention order as well as a charge of breaching the suspended sentence imposed by the Latrobe Valley Magistrates Court on 17 November 2010. You were convicted and sentenced to 4 months imprisonment.
57This offending, as I understand it, related to your previous partner, Louise Fowler[4].
[4] A pseudonym.
58On 11 April 2013, you appeared at the Melbourne County Court in relation to charges of aggravated burglary, theft, burglary, prohibited person possess firearm and a range of drug-related offences. On that occasion you were convicted and sentenced to five years imprisonment. You were required to serve a period of three years and six months before being eligible for parole.
59You were apparently released onto parole on 23 August 2016. That parole was cancelled on 27 November 2017.
60On 18 April 2018, you again appeared at the Latrobe Valley Magistrates Court. On that occasion you were convicted and sentenced to 8 months imprisonment in total for charges which included four charges of unlawful assault, contravening a family intervention order, two charges of breaching a condition of parole, intentionally causing injury, refuse to provide a sample of oral fluid and persistent contravention of a family violence intervention order.
61That offending apparently included offending against Ms Marr.
62As referred to earlier, you were released onto parole on 22 February 2019 and are now subject to a summary charge of breaching a parole condition
63This brief summary of some of the matters recorded in your criminal history would indicate that relatively short periods of imprisonment have not deterred you, nor have supervisory orders assisted you. Whilst not to be punished for your criminal history a second time it is relevant to the weight to attach in the sentencing exercise to specific deterrence, denunciation and protection of the community. It is also relevant to an assessment as to your prospects for rehabilitation.
64Viewing your history in isolation, those prospects would appear to be guarded.
Personal circumstances.
65You are now 38 years of age and were 35 at the time of your offending.
66You were born and bred on a beef farm in Trafalgar run by your parents. You have a positive relationship with each of your parents.
67You have a younger brother and sister who also reside in the Latrobe Valley. You report a close relationship with your siblings.
68You did not complete a year seven education. You were diagnosed with attention deficit hyperactivity disorder as a child and prescribed Ritalin. You stopped taking medication for this condition at around 12 years of age as it made you drowsy.
69You have worked variously on the family beef farm, in the family waste management business and in concreting, woodcutting and seasonal fruit and vegetable picking. You left home at 18 years and rented a property owned by your parents. In the main, you have either resided in a home owned by your parents, resided with your parents or your domestic partner.
70You have a solid and supportive background in terms of your family and your upbringing.
71You do have a documented history of learning difficulties and a diagnosed intellectual impairment to which I will shortly refer. Concerns about your intellectual functioning date back to when you were young and you met eligibility criteria for Disability Services in 2004. Whilst not relied on directly in your plea, clinical neuropsychologist, Mr Martin Jackson, provided reports at an earlier stage finding that you had a full Scale IQ of 68, consistent with a mild intellectual disability.
72From the age of 19 years, you were in a relationship with Louise Fowler for approximately six years. You have a stepdaughter, a son aged 17 years and a daughter aged 14 years from that relationship. I am told that you maintain a relationship with each of your children. Your relationship with Louise Fowler was one also characterised by family violence.
73You have a significant and long-standing relationship with drug use which is somewhat unexplained given your supportive upbringing. You commenced drinking alcohol from the age of 16 years. You have used cannabis since the age of 10 years until a few years ago. Your drug of choice would appear to be methylamphetamine or ice. You were using drugs heavily at the time of your offending.
74Tendered on your behalf were two reports authored by Ms Gina Cidoni, psychologist.
75The first in time is dated 3 November 2022. You did express your remorse and guilt for your actions to Ms Cidoni.
76
Ms Cidoni reports that during your previous prison terms you were assaulted by five inmates where you reported to Ms Cidoni that you were attacked by five persons and strangled. You reported several symptoms consistent with
post-traumatic stress disorder. Ms Cidoni links a diagnosis of post-traumatic stress disorder with this experience. Further, as you are traumatised in prison, certain situations act as triggers and are expected to attenuate your symptoms.
77She also notes that treatment of ADHD is not supported within the prison system, so an exacerbation of those symptoms is also likely to result.
78Ms Cidoni describes your thinking as showing immature social and emotional functioning. Ms Cidoni accepted that your intellectual functioning was consistent with a diagnosis of mild intellectual disability as previously identified by Martin Jackson, neuropsychologist.
79Ms Cidoni found that your symptom profile was consistent with your earlier attention deficit hyperactivity disorder diagnosis. Whilst the psychological testing results were not entirely reliable, she found that you suffer from a mild intellectual disability, attention deficit hyperactivity disorder, post-traumatic stress disorder and major depressive disorder.
80I accept that Ms Cidoni's findings form a basis to apply limbs five and six of the principles contained in R vVerdins & Ors[5]. Including your low functioning,
post-traumatic stress and the context in which this condition arose, and your major depression, your diagnosed conditions would increase the hardship experienced by you in prison as you do suffer from an impairment at the time of sentencing. Your conditions justify a less severe sentence as the evidence indicates that there is a serious risk that imprisonment could have a significant adverse effect on your mental health.[5] R vVerdins & Ors (2007) 16 VR 269
81In terms of your intellectual functioning, Ms Cidoni writes that these functions are impaired in terms of your general ability to process and hold information, your ability to reason abstractly or comprehend concepts. Your ability to relate cause and effect and coping skills are all inadequate. You are easily overwhelmed. Your ADHD means you are predisposed to poor impulse control and a desire for immediate gratification with a lack of consequential thinking.
82I accept that the combined impact of these identified deficits in your intellectual functioning allows for some moderation of your moral culpability – which I would have otherwise assessed as high, given your history for violent behaviour towards intimate partners. I am also of the view that there should be some limited moderation of both general and specific deterrence.
83There is no challenge to the findings just reported. A supplementary report from Ms Cidoni was obtained as I expressed some concerns with her risk assessment of you contained in her initial report.
84In a supplementary report dated 14 November 2022 Ms Cidoni clarified her earlier opinion and acknowledged an error in her original calculations. In her opinion, your risk of sexual offending was to be amended from low risk to being one of medium risk.
Plea of guilty
85The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty plea. Your plea occurred at the commencement of your trial and could not be considered to be at an early stage. I note, however, that the Plea indictment did not include charges of stalking and a charge of vaginal rape which had appeared on a trial indictment.
86To your credit, you have now acknowledged your responsibility for your offending in your plea of guilty. This demonstrates a willingness by you to facilitate the course of justice and, importantly, has saved the need for witnesses to attend, particularly Ms Marr, and relive traumatic events. I note Ms Marr was
cross-examined at a committal hearing in January of 2021.87Your plea of guilty in the context of the COVID-19 pandemic has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the Court's operations have been significantly disrupted.
88In the context the materials before me, I am satisfied that your plea of guilty does represent remorse. All of these factors will be taken into account in your favour.
Delay
89You were charged on 17 September 2019.
90Trial listings in the County Court sitting in the Latrobe Valley were impacted by COVID-19 and availability of trial counsel. Ultimately, your trial was not in a position to commence until 23 August 2022 and in Melbourne.
91You have, of course, been in custody for this entire time.
92I accept this delay has meant that finality for you has been a long time coming and that this has been an additional burden upon you. You told Ms Cidoni that you have not been coping, have been suicidal at points in time and have self-harmed.
93In addition, your period on remand has been during the Corrections response to the COVID-19 pandemic, where I accept in the main, there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends or family. New inmates were required to quarantine for 14 days on each occasion of a prisoner movement. In a general sense, this does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be. This is another factor to be taken into account and I do so.
Prospects for rehabilitation
94You have accepted the end of your relationship with Ms Marr although you did tell Ms Cidoni you are still in love with her.
95Your former partner, Louise Fowler, has provided a reference. Presently, you are in what is described as an amicable co-parent relationship. Ms Fowler describes you as being extremely supportive and that, during the past three years, she has seen you grow into a caring and involved father. You contact your children on a daily basis and are taking time to build a solid relationship with your children. This relationship may be easier for each of you to navigate whilst you are in custody and sober. It is obviously important that you transition these positives when you do ultimately return to the community.
96I accepted that you remain well supported by family. Your parents attended your plea hearing albeit the matter did not proceed on its initial date, due to the inability to link in with the prison in which you were housed. You are able to return to live with your parents upon your release
97Your brother, Luke, has also provided a reference. He describes you as a loyal brother and friend, always willing to lend a helping hand. He reports that you have a positive relationship with his two children. Luke believes that you are maturing as a person and now have greater prospect of being a successful member of society. You clearly have his continued support.
98I have taken the contents of your references into account. They do appear to reflect a positive change in attitude.
99I accept that the somewhat harsher conditions of your remand period in the context of the Corrections response to the COVID 19 pandemic adds to the sanction and, hopefully, deterrence of that experience. It would appear that you have made some attempt to use your time wisely and have completed courses in alcohol or drug described as 'Psych Education Program' and 'Healthy Lifestyle Program' as well as a 10 week assertive communication group
100A letter authored by James Harding, founder of ‘Hard Cuddles’, dated 13 April 2022 details that he has been working with you in a counselling capacity since June of last year. You appear to be responding to his assistance and I take the content of his letter into account.
101You have been receiving psychological support through the National Disability Insurance Scheme for the last few months. However, you reported to Ms Cidoni that this has not been helpful in improving your mental health.
102Overall there are positives in your increasing maturity. It is perhaps obvious that you need to avoid drug use. Ms Cidoni recommended drug treatment, psychotherapy and skills training.
103The combination of your low intellectual functioning and where deficits in your functioning present with your ADHD and its impact on your impulse control, need for immediate gratification and lack of consequential thinking raise obvious concerns for the need for community protection from you, particularly your intimate partners. In my assessment, taking into account the positives, your overall prospects of rehabilitation do remain guarded.
Standard sentencing scheme
104Turning now to the standard sentencing scheme. I have already referenced the standard sentencing scheme which operates in relation to Charge 3, rape, on Indictment K1242285.4. This charge carries a standard sentence of 10 years. The standard sentencing scheme became effective on 1 February 2018 and applies to offences committed after that date.
105The period specified as a standard sentence 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 range of seriousness. In determining the objective factors, the Court must consider only the nature of the offence and not your personal circumstances. This determination is only intended to give context to the hypothesised mid-range offence. Nothing in the scheme circumscribes the manner in which the Court is to assess the seriousness of the offence.
106Pursuant to s11A(4)(c) of the Sentencing Act 1991 the Court is required to set a non-parole period of not less than 60 per cent of the head sentence if the Court in sentencing the offender to a head sentence of not less than 20 years, unless it is not in the interests of justice to do so.
107The Court of Appeal has said that the key requirement for the Court is for it to take into account the standard sentence as the relevant sentencing factor but, as with the maximum penalty, it is in fact a legislative guidepost. It does not affect the instinctive synthesis. It does not permit two stage sentencing or otherwise affect matters the Court may or must consider when sentencing. A Court does not start by asking whether or not the standard sentence should be imposed and then work its way either up or down. Consideration of current sentencing practices is necessarily limited by the sentences previously imposed if the sentence in question was subject to the standard sentencing scheme.
108Your Counsel contends your offence of rape is below the mid-range. The Crown contend the objective gravity is higher than that.
109Your Counsel has referred me to some four cases being Allen v The Queen[6], Wright v The Queen[7], DPP v Serin[8] and DPP v Dao Thi Dat[9] in order to provide some guidance on comparable offending and current sentencing practices. It was submitted that the latter two cases presented with more serious factual circumstance.
[6] Allen v The Queen [2021] VSCA 249
[7] Wright v The Queen [2021] VSCA 243
[8] DPP v Serin [2020] VCC 1190
[9] DPP v Dao Thi Dat [2020] VCC 344
110In brief compass, Mr Serin pleaded guilty to one charge of rape - a 'rolled up' charge relating to two occasions of oral penetration each of which occurred on the same occasion. Mr Serin committed his offences in possession of a knife which he made obvious to the victim. He made degrading comments and intimidating demands. Mr Serin was subject to a community corrections order at the time that he offended and had a prior criminal history which included breaches of intervention orders and violence. His plea of guilty was at an early stage. Mr Serin was convicted and sentenced to eight years and six months' imprisonment with a non-parole period of six years and three months' imprisonment.
111Mr Dat pleaded guilty to two charges of digital penetration of his ex-wife, each of which occurred on separate occasions with the second in time being more aggressive in circumstances than the first rape. No weapon was used. He did not have a relevant prior criminal history. His offending was aggravated by the presence of children during the second rape. Mr Dat was sentenced to a total effective sentence of eight years imprisonment with a non-parole period of six years.
112I note each of the matters to which I was referred, bar the matter of Allen v The Queen, were subject to the standard sentencing regime. I have had recourse to each of those decisions and whilst there are understandable differences in the facts, they are of some assistance.
113I do find that your charge of rape is towards, but not at, the mid-range given your persistence between each incident despite being told 'no' and Ms Marr’s state of distress, the rape itself was somewhat prolonged, the offending occurred in the context of family violence and your victim was caught by surprise and somewhat vulnerable in her own home.
Totality
114However the totality principle will be an important part of the sentencing exercise. The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is 'just and appropriate' for the whole of the offending. This principle has obvious application to the summary charges, the charges contained within each indictment and the fixing of a sentence to include each of these matters.
115I am mindful of the provisions of s6E of the Sentencing Act 1991 and those of s16(3BA) to which I will shortly refer. In dealing with summary offences, two indictments and a statutory scheme, I must evaluate the overall criminality involved in all of the offences for which you are to undergo sentence. In so doing I must endeavour to ensure that there is no disproportion between the totality of the criminality and the totality of the effective length of sentence to be imposed.
Sentencing
116The basic purposes for which a Court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
117I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure where possible, that offenders are rehabilitated and safely reintegrated into society
118I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty as well as the principles of totality and proportionality.
119I am about to turn to the sentencing exercise; before I do so, Mr Waters, any matters arising?
120MR WATERS: One very minor matter, Your Honour, and that was Your Honour referred to the prosecution opening and the circumstances of the 29 August matter. It is just with the 'the offender used his elbow to push the complainant in her back' rather than 'on her back'. Just to make it clear, I do not think there was any suggestion she fell on her back. It was the elbow was used to push 'in her back'.
121HER HONOUR: I must say that is how I understood the facts, that it was a push to the back.
122MR WATERS: Yes, yes.
123HER HONOUR: Yes. So if that was not clear, thank you very much for raising that, Mr Waters. Mr McConaghy.
124MR McCONAGHY: Yes, Your Honour. Your Honour has referred to s6E. Is Your Honour specifically addressing the serious offender provisions?
125HER HONOUR: Yes, I will.
126MR McCONAGHY: Thank you, Your Honour.
127HER HONOUR: Yes, thank you. I turn firstly to the summary offences.
Summary offences
128Summary Charge 6 – drive whilst disqualified - is an offence for which you have some 4 prior convictions. I earlier expressed the view that it did not appear at the higher end for an offence of its type. For that particular offence you are convicted and sentenced to 4 months imprisonment. With the principle of totality in mind, I do not propose to cumulate this sentence upon any other orders.
129For this charge, s28 (1) (b) of the Road Safety Act 1986 gives the Court a power to cancel or suspend your license for a period the Court sees fit on conviction for an offence against that Act. Driving whilst disqualified is an offence contained in the Road Safety Act 1986. Given your relevant history, I propose to cancel any driver’s license held for a period of two years
130For summary Charge 7 – breach condition of parole, you also have a relevant prior history having been sentenced for two such charges by the Latrobe Valley Magistrates Court on 18 April 2018.
131In addition, s16 (3BA) of the Sentencing Act 1991 requires that every term of imprisonment imposed for an offence of breaching a parole condition, unless otherwise directed by the Court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment imposed for an offence committed whilst released under parole. It is only Charge 1, common law assault, the subject of indictment K12432285.3 which is impacted by this provision as you committed this offence whilst subject to parole, indeed as part of the same episode.
132The summary offence therefore requires that you need to establish the existence of exceptional circumstances or the sentence imposed for that offence must be cumulative on any period of imprisonment that you may be required to serve on any period of imprisonment imposed for the offence of common law assault committed whilst released under the parole order. I note the specific charge is for breach of a condition of parole.
133I am of the view that given the summary offence of breach of parole condition and the common law assault were committed as part of the same episode and that the totality principle should also be reflected in the sentence to be imposed that I should again look to concurrency. This may, at first blush, give the appearance of undue leniency being extended. This decision is also in consideration of the relatively low maximum penalty for this charge and the focus in sentencing on the charges the subject of indictment, playing a dominant role in the determination of an appropriate sentence overall.
134For summary Charge 7 you are convicted and sentenced to 1 months' imprisonment
135I now turn to the indictments.
Indictment K12432285.3
136For Charge 1 – common law assault, you are convicted and sentenced to 8 months imprisonment.
137For charge 2 – common law assault, you are convicted and sentenced to 12 months’ imprisonment. This is the base sentence on this indictment
138I direct that 2 months of Charge 1 is cumulative on the sentence imposed on Charge 2. The total effective sentence on this indictment is therefore 14 months imprisonment.
Indictment K12432285.4
Serious Sexual Offender Provisions
139You are to be sentenced as a serious sexual offender after Charge 2 on Indictment K12432285.4 which pursuant to s6F of the Sentencing Act 1991 is to be noted on the record. From that point every term of imprisonment imposed for a relevant offence must, unless otherwise directed, be served cumulatively on any sentences of imprisonment imposed, whether before or at the same time as that term. In this particular instance, the charge of rape is Charge 3 on that indictment and is, of course, the most serious of the offending before this Court.
140I am required to regard the protection of the community from you as a principle purpose for which sentence is to be imposed on that indictment. In order to achieve this purpose, I do have the power to impose a sentence greater than that which is proportionate to your offences. I note that a disproportionate sentence is not sought and will not be imposed. Protection of the community will be addressed through the sentencing orders to be made.
Sentence
141Each of the charges on this indictment occurred on the same occasion and within a relatively short period of each other. This again reinforces the importance of the principle of totality.
142For Charge 3, I have had regard to the standard sentencing scheme. The sentence that I intend to impose for this charge will be lower than the standard sentence prescribed in consideration of s5(2) of the Act, taking into account the nature and gravity of your offending, the circumstances in which it occurred, your personal circumstances including your remand period during COVID, your low intellectual functioning, the content of expert reports tendered and other mitigatory matters to which I have referred.
143Charge 1 – sexual assault, you are convicted and sentenced to 8 months imprisonment
144Charge 2 – sexual assault, you are convicted and sentenced to 14 months imprisonment
145Charge 3 – that of rape, you are convicted and sentenced to 6 years and 8 months imprisonment. This is the base sentence on this indictment
146One month of Charge 1 and 2 months on Charge 2 is cumulative on the base sentence.
147The total effective sentence on this indictment is one of 6 years and 11 months imprisonment
Overall
148I direct that the sentence imposed on Indictment K12432285.4 is the base sentence, 5 months of the sentence imposed on indictment K12432285.3 is to be cumulative on the sentence imposed on K12432285.4.
149This makes a total effective sentence of 7 years and 4 months imprisonment in respect of all offences for which you are presently before the Court.
150I direct that you serve 5 years before being eligible for parole. 1172 days will be reckoned as having already been served.
151Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to these charges. If not for your pleas of guilty I would have sentenced you to a total effective sentence of 10 years with a minimum of 7 years before being eligible for parole.
152I will briefly check with counsel if there is anything matters arising, particularly with my maths, and then I will give you the opportunity to speak to Mr Waters privately.
153COUNSEL: We have no difficulty with your maths, Your Honour.
154HER HONOUR: All right, or anything else at this stage?
155MR WATERS: No, Your Honour.
156HER HONOUR: Yes. Mr McConaghy.
157MR McCONAGHY: Agreed, Your Honour.
158HER HONOUR: All right, thank you. Well I will give you the opportunity to speak with your client privately, Mr Waters. I will now close the Court until 10.30 on Monday. Thank you both of you for your assistance.
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