Director of Public Prosecutions v Wilson
[2022] VCC 1150
•22 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT WILSON |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 July 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Wilson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1150 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – Rape – False Imprisonment – Intentionally cause injury – Theft – Circumstances of COVID-19 pandemic – Standard Sentence Regime – Rolled-Up Charges – Serious Offender Provisions
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Mason [2001] VSCA 62; Worboyes v The Queen [2021] VSCA 169; DPP v Short [2006] VSCA 120; DPP v DDJ (2009) 22 VR 444; Brown v The Queen [2019] VSCA 286; R v Orgill [2007] VSCA 236; DPP v Grabovac [1998] 1 VR 664; DPP (Vic) v Drake [2019] VSCA 293; Zhao v The Queen [2018] VSCA 267; Azzopardi v The Queen [2011] VSCA 372; Bowden v The Queen [2013] VSCA 382; DPP v Moses [2009] VSCA 274; DPP v Granata [2016] VSCA 190; DPP v Frank (a pseudonym) [2021] VSCA 163
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Champion Ms A Martin | Office of Public Prosecutions |
| For the Accused | Mr S Kenny | Kurnai Legal Practice |
HER HONOUR:
Introduction
1On 2 April 2019 police arrived at a house in Darley; they arrested a man and found a range of items: a speargun, a blood stained pole; CCTV equipment; handcuffs, an alarm system and other things that had been used to imprison a woman over five days who was, during that time, assaulted and raped in degrading circumstances before being driven home on the afternoon of the fifth day.
PART 1 – FACTUAL BACKGROUND
Plea of guilty and maximum penalty
2Robert Wilson, you have pleaded guilty to one charge of false imprisonment, three charges of rape, one charge of theft, and one charge of causing injury intentionally.
Circumstances of the offending
3The prosecution opening, dated 29 March 2022, sets out the circumstances of your offending. It was tendered on the plea and became Exhibit E. It is attached to and forms part of these reasons. Further, the prosecution sentencing submissions had two annexure which expand the content of the rolled-up rape charges, and which I append to these reasons. I will summarise just some of the facts giving rise to your offending here.
Background
4Ms Dang[1] was born in Vietnam and arrived in Australia in 2015. At the time of your offending she was 39 years old, and lived in Doncaster[2] with her housemates. She spoke some, but not fluent, English and was working as a trainee nail technician at locations in [a northern suburb] and in the city.
[1]A pseudonym.
[2]Location de-identified.
5You were 32 years old and lived in a house at 47 Grey Street, Darley.
6Briefly, you have pleaded guilty to falsely imprisoning Ms Dang between the Monday and the Friday of that week of 25 March 2019 to 29 March 2019; raping her on each day and, particularly, raping her on eighteen occasions across nine discrete episodes of sexual offending; injuring her on one occasion on the Tuesday and stealing money from her bank account on two occasions.
7These events took place in the context of other physical assaults and threats you committed made against her.
Meeting
8In early 2019, you and Ms Dang had contact on a dating website called ‘Badoo’. After about two weeks of ‘chatting’ you met in person; this was in late February.
9After meeting, you contacted Ms Dang and said you wanted to see her again. You continued to meet.
10At some point in this time, you asked Ms Dang to be your girlfriend. While she accepted this title, she told you more time was needed to get to know each other. You exchanged Facebook details. Your account was in your name, ‘Robert Wilson’; you updated your status to nominate Ms Dang as your girlfriend.
11A few days later, you asked Ms Dang why she had not put you as her boyfriend on Facebook; you took Ms Dang’s phone from her and changed her relationship status on Facebook to being in a relationship with you.
12You continued to see one another; Ms Dang noticed you become more controlling of her. You asked her to tell you when she was leaving her house and arriving at work; you would video-call her and ask her to show you where she was.
13You knew that Ms Dang was in Australia on an expired visa and you said to her: “if you ever betray me I will have you deported”.
14In the days before 11 March 2019, you were sexually intimate for the first time; this was consensual. You wore a condom.
15Around 15 March 2019, you asked Ms Dang to move in with you. She told you she needed to see your house first. You invited her to visit.
16On Friday 15 March 2019, you picked up Ms Dang from her workplace in the city. You had your two young daughters with you. You drove the 45-minute journey to your house. That evening, Ms Dang stayed with you and you had consensual sex. In the morning you drove her to the train station, about a 10-minute trip, and she went to work.
17In the following days you spoke to Ms Dang about your plans for her to move in with you. She said she would live at her house and would visit you until she felt you were ready to live together.
18On the following Monday, 18 March 2019, you asked Ms Dang if you could pick her up from work in [a northern suburb] ; you found it hard to find the address. When you eventually met, Ms Dang got into your car, and you slapped her face hard. You drove off. She asked you where you were going; she told you she wanted to go home. You said a boyfriend and girlfriend should sleep together at night. You took her to your house.
19That evening you and Ms Dang had sex. The next morning, you dropped her at a train station, and she took the train to work.
20Every day for about the next week you picked Ms Dang up from work and took her to your place. In the evenings, you would check her phone and ask her about the contacts in it: who they were and how she knew them. You deleted contacts you did not approve of. You did the same on her Facebook account.
21Around this time Ms Dang told her housemates that she was worried about the way you were behaving.
Offending Day 1: Monday, 25 March 2019
22On Monday 25 March 2019, consistent with the pattern over the week before, you picked Ms Dang up from work in [a northern suburb]. Once she was in the car, you drove off quickly; when she asked you where you were going you told her: “back to my place”. She told you she did not want to go. You said she had to so you could ‘talk’.
23You set off in the direction of your place. On the way, you stopped and ate dinner in a restaurant. When you arrived at your house you parked your car in the driveway and locked the gate.[3] The house is surrounded by a metal electronically-controlled gate. Ms Dang refused to get out of the car. She said she would talk in the car but that afterwards she wanted to go home.
[3]See plea exhibit book photos p 41 and following.
24After a time she agreed to go inside. She sat down in the living room.
25Without warning, you began to punch her to the face and head. She put her hands up to protect her face; you kept punching her.
26Ms Dang tried to stand but fell to the ground. While she lay there, you, wearing shoes, stomped on her stomach. This caused Ms Dang to defecate in her underwear.
27You then picked Ms Dang up by the ankles, and, while holding her, slammed her down onto the ground. You continued to assault her by punching and by stomping on her.
28You then removed Ms Dang’s underwear and kicked her in the vagina. She was in pain. You then strangled her.
29You took off her jewellery: her watch, rings and earrings, and destroyed them.
30Your sexual offending of Ms Dang commences from this point.
First episode of sexual offending
31Ms Dang was lying on the floor; you were on the couch. You took off your pants, leant down, and picked Ms Dang up by the back of the hair. You then pushed Ms Dang’s mouth onto your penis. She was dazed and immobile. You used your hands on Ms Dang’s head to pull her head back and forth on your penis (Charge 2: Rape – occasion 1 of 7).
32You then dragged Ms Dang onto the couch and rifled through her bag and purse, and removed anything that had a phone number on it. You took her phone and all her bankcards.
33You then dragged her along the ground to your bedroom. She told you she had to go to the toilet, which you allowed. Whilst there, Ms Dang saw she had defecated in her underwear. She washed her underwear in the basin and hung it to dry. You yelled at her, asking why she was taking so long.
Second episode of sexual offending
34You then dragged Ms Dang from the bathroom onto your bed. You pulled up her dress and put your penis in her vagina (Charge 3: Rape – occasion 1 of 6).
35You then withdrew from her vagina and started to insert your penis into her anus. She begged you not to do this; she had never had anal sex before. You said that you did not care and proceeded to penetrated her anally (Charge 4: Rape – occasion 1 of 5).
36You then withdrew from her anus and inserted your penis into her mouth (Charge 2: Rape – occasion 2 of 7). Ms Dang could smell and taste her own faeces. You ejaculated in her mouth and told her to swallow your ejaculate. She told you she could not; you said that if she did not swallow you would beat her to death. She was so scared that she swallowed. She felt sick. Ms Dang either fell asleep or lost consciousness.
37She awoke to you coming back into the room screaming the words “This is my money.”
38She fell asleep or lost consciousness again. She awoke to you pulling her up by her hair, demanding she give you her banking PIN and internet banking password. She refused. You then strangled her around her neck; she became frightened you would kill her. You said to her: “Do you want to die?” She gave you her passwords; you let her go.
39Over a period of time Ms Dang drifted in and out of consciousness. On one occasion she woke up to see you looking through her phone.
40On another occasion she woke and you told her: from now on she could not have anything, no money, no bank cards and no phone.
41Bank records show that on this day you withdrew $2,500 from Ms Dang’s bank account and transferred it to your bank account (Charge 5: Theft – occasion 1 of 2).
Offending Day 2: Tuesday, 26 March 2019
42Ms Dang awoke around dawn. You were next to her on the bed using her phone. She tried to get up to go to the toilet; you asked her where she was going, and she told you. You then handcuffed her hands behind her back, causing her pain. She begged you to remove them and you did. She fell asleep.
43Ms Dang awoke later that morning and tried to leave the room; you asked her where she was going. She told you she was going to the kitchen to get some water. She took a step outside the bedroom and a loud alarm went off. You deactivated the alarm and she went to the kitchen.
Third episode of sexual offending
44Ms Dang lingered in the kitchen until you yelled out, asking why she was taking so long. She went back to the bedroom and lay down. You pulled her dress up and put your penis in her vagina (Charge 3: vaginal Rape – occasion 2 of 6).
45On the Tuesday night, you took Ms Dang by the hair and asked her about every contact in Vietnamese in her phone. You asked if the number belonged to a man or woman and whether they were an ex-lover. When she answered that this person had been a previous lover, you punched her all over her face and head. At this stage Ms Dang could not see out of her left eye because of your previous assaults. This time, you asked her if she wanted the other side of her face as swollen as the injured side. You continued to punch her.
46Around this time you picked up a silver bar, about a meter in length,[4] from near the bed head and struck Ms Dang with it. You hit her to her body and to her arms; she started bleeding from above her left elbow. She saw her blood on the ground and the bed sheets (Charge 6: Intentionally cause injury – representative charge).
[4]See plea exhibit book p 81.
47You then took what Ms Dang would later describe as a ‘bow and arrow’ from the top of your wardrobe and pointed it at her head. You asked her if she wanted to die and said, “I’ll kill you straight away”. When the police searched your house, they found a black speargun labelled ‘Enforcer 500’ with a blue handle and a black barrel. It has a spear and what appears to be a loading pump.[5]
[5]See plea exhibit book p 86 and following.
48Ms Dang bled heavily from her arm. She asked you not to let her bleed to death – you bandaged her arm. The bleeding continued.
Fourth episode of sexual offending
49Ms Dang sat on the bed holding her arm. You then pulled her head down by her hair and forced her mouth onto your penis (Charge 2: oral Rape – occasion 3 of 7). You lifted her head up and down on your penis; you then pulled her dress up and put your penis into her vagina (Charge 3: vaginal Rape – occasion 3 of 6). You then stopped, and started to put your penis into Ms Dang’s anus. She begged you not to do this because it hurt her so much the time before. You nevertheless went on to insert your penis into Ms Dang’s anus (Charge 4: anal Rape – occasion 2 of 5). Just before you ejaculated you put your penis into Ms Dang’s mouth; and told her to swallow your ejaculate (Charge 2: oral Rape – occasion 4 of 7). She spat your ejaculate out into her hands and saw that it was mixed with blood. You said to her “Do you want to die?” and told her to eat it. Ms Dang swallowed the ejaculate.
50Ms Dang then vomited on the bedroom floor. You told her that from this point on she had to stay there with you permanently, and that she could not go to work or leave the house. You told her that if she disobeyed your orders, you would turn her into a ‘money making tool’ and would invite men over in order to prostitute her.
51Ms Dang had not eaten anything since arriving at your house on the Monday.
52On this day, Ms Dang’s work colleague, noticed that Ms Dang had not come to work nor made contact as she would expect. She tried to call Ms Dang; the phone appeared to be switched off. She looked at Ms Dang’s Facebook page and sent a message to Ms Dang’s friend Ha[6]. She asked Ha where Ms Dang was; she had become worried about her. On the same day Ms Dang’s friend Nguyen[7] tried to call her but there was no answer.
[6]A pseudonym.
[7]A pseudonym.
53Bank records show that on this day you withdrew $630 from Ms Dang’s bank account and transferred it to your bank account (Charge 5: Theft – occasion 2 of 2).
Offending Day 3: Wednesday, 27 March 2019
54By the morning of the Wednesday (27 March 2019), Ms Dang had difficulty seeing out of both her eyes. You asked her to help clean your car in the backyard. She tried to do so, but when she went outside the light hurt her eyes and she went inside. You locked the door.
55Throughout the day Ms Dang slept. You offered her food, but she could not eat as her mouth and neck were sore from your assaults; she could not see. She did not eat anything on this day; she drank a little water. She was terrified.
Fifth episode of sexual offending
56You raped Ms Dang several times this day. On one occasion, you put on a plastic penis over your own penis and used this to penetrate Ms Dang’s vagina (Charge 3: vaginal Rape – occasion 4 of 6). You then removed the plastic penis and placed your bare penis into Ms Dang’s anus (Charge 4: anal Rape – occasion 3 of 5). You then removed your penis and inserted it into Ms Dang’s mouth, and again made Ms Dang swallow your ejaculate (Charge 2: Rape – occasion 5 of 7).
57Ms Dang lay in bed. Her left eye was swollen shut and she could only see out of her right eye. She could see the television screen in your bedroom which showed vision from security cameras filming the front of your house. She watched you letting in three or four men through the front gate.
58She decided to ask the men for help. She went through the house to the front door. She was unsteady on her feet. She saw the front door was open and only the security door was closed. One man was standing close to the security door.
59She tried the security door, but it was locked. She then saw that you were standing very close by. You saw her and said: “What are you doing?” She was frightened and went back to the bedroom.
60When back in the bedroom she saw you on the CCTV screen entering the house. You checked on her. She lay on the bed pretending to sleep. You went back to speak to the men, this time going by the back sliding door. She watched you locking this door behind you and leading the men into the backyard where you had cars parked.
Sixth episode of sexual offending
61After the men left, you went back into the house. You undressed. You rolled Ms Dang onto her stomach and pulled her up, so she was on her hands and knees. You asked her if she wanted to run away. She said “No, how can I get away with my body full of injuries like this?” You lifted up her dress and inserted your penis into her anus (Charge 4: anal Rape – occasion 4 of 5).
62Ms Dang, in pain, begged you to stop.
63You then told Ms Dang that her face was so deformed that nobody would recognise her. You told her all she had left were her teeth and hair. You said that if she did not obey you, you would disfigure her. You told her that the sooner she ‘finished you’ the sooner it would be over.
64You then inserted your penis into Ms Dang’s mouth (Charge 2: oral Rape – occasion 6 of 7). Her mouth hurt. She tried to make you ejaculate but had to keep stopping. You became frustrated by this, and withdrew your penis and then inserted it back into her anus; you alternated between her mouth and anus for about half an hour but became increasingly frustrated.
65You picked up the iron bar again and hit Ms Dang with it.
66Ms Dang knelt on the bed. She told you she was sorry. You picked up the speargun (‘bow and arrow’) and pointed it at her forehead. You asked her if she wanted to die; you said to her you would shoot her in the eye.
67Your phone rang and you answered. Ms Dang watched you on the CCTV screen and saw you go outside and meet a man who had arrived on a motorcycle out the front.
Seventh episode of sexual offending
68After dealing with the man on the motorcycle you returned to the bedroom and put your penis in Ms Dang’s mouth (Charge 2: oral Rape – occasion 7). You told her to stroke your penis with one hand and touch your anus with the other. She obeyed you. While she did so, you photographed her. You told her you would send the photos to her friends and family if she ever reported the matter to police.
69You continued to orally rape Ms Dang for approximately two hours (Charge 2: Rape – occasion 7 continued). She struggled to stay awake; when she became sleepy you slapped her hard to the face. You told her to insert her fingers into your anus and she did so.
70Ms Dang eventually fell asleep and slept until the following morning.
71By this time several of Ms Dang’s friends and colleagues became animated by their concern for her. They tried to call her. They contacted one another by message, phone and social media. No one had seen her.
72Eventually, after some searching, one of them, Ha Diep[8], contacted you via Facebook. Ha’s message to you said Ms Dang had been missing since Sunday and that her phone was off. Ha tried to call you twice. That evening Ha sent a message to Ms Dang’s Facebook saying if she did not hear from her she would call the police.
[8]A pseudonym.
73Ms Dang’s other friends continued to try to contact her by phone and social media.
74At some stage on the Wednesday evening Ms Dang answered the phone call of Anh Lanh[9], a friend. Ms Dang told Anh she could not talk on the phone but that she was very sore and she had been hit by you. Anh then asked for the address of where she was. Ms Dang said she did not know where she was but that she was locked up in a room. She asked Anh to try and save her. She was whispering and sounded afraid. Anh then heard a man, you, say “No, no, no, no,” and the call ended.
[9]A pseudonym.
75Anh sent a Facebook message to Ms Dang saying, “Keep in touch with me”.
76At around dusk on either the second or third day, Ms Dang went to the kitchen to get a drink of water; you kicked her to the back of the knee and she fell. You squeezed her neck with your hands. You held her down with one hand and tried to grab what Ms Dang believed was a knife. You then put an object at the front of her neck and said to her, “I am going to kill you”. She managed to get away back to the bedroom.
Offending Day 4: Thursday, 28 March 2019
77On the morning of Thursday, 28 March 2019, Ms Dang woke up and contemplated escaping. She got out of bed and walked to the hallway. As soon as she stepped out of the bedroom an alarm went off. You woke up. You were angry. You asked where she was going. She said she was getting water and you turned off the alarm.
Eighth episode of sexual offending.
78When she returned to the bedroom, you inserted your penis into Ms Dang’s vagina while she lay on the bed (Charge 3: vaginal Rape – occasion 5 of 6).
79After doing this you asked Ms Dang for her ‘Apple ID’ and she gave it to you. You asked her to call her telephone service provider and get her phone number changed. You made the phone call to the customer service officer at Optus, then passed the phone to her and she made the request. You had her phone. You told her you had erased all her contacts and all her data.
80Ms Dang fell asleep. When she awoke you were on the bed; Ms Dang asked you to let her go. You told her she would never be able to go anywhere and would have to stay permanently at your house.
81You permitted her to walk to the kitchen area. While there she studied the windows and saw that all security doors and windows except one were locked. One window had a security roller door that was operated manually by a winder. She contemplated escaping through this window.
82At 10:34am, Ha called you via Facebook but you did not answer. She sent a message to you on Facebook stating, among other things, that she would call police.
83At 1:04pm, you replied to her by Facebook. You said that Ms Dang was not missing and would be home the next day. Ha replied: she wanted to talk to Ms Dang to check she was safe. You told Ha you had been trying to set up a new ‘Apple ID’ and that you would get Ms Dang to call her shortly. These messages were later obtained by police.
84Whilst Ms Dang was in the kitchen you showed her these messages and said a woman had contacted you on Facebook. Ms Dang saw that Ha had called you. You then directed Ms Dang to tell Ha that she had just been unwell, and not to mention having been assaulted.
85At 4:38pm, Ha sent you a message via Facebook and asked to speak to Ms Dang.
86At about 5:00pm you called Ha and put the phone on speaker. Ms Dang and Ha spoke in Vietnamese. Ha would later recall that Ms Dang told her you had been assaulting her since Monday for four days, she was in a lot of pain, and she was going to die if she stayed there. Ha said they would find a way to rescue her and told Ms Dang to look for something that had your address on it. You then spoke to Ha; meanwhile Ms Dang looked for something with your address on it. While pretending to wash her hands she saw a bill on the fridge. She saw your address but she could not make out the suburb. She asked to speak to Ha again. Ms Dang spoke in Vietnamese and very quickly spelt out the address. Ha’s recollection of the address is a partial match to yours. Ms Dang asked Ha to help her get out of the house. They finished the call. Ha then contacted friends to tell them what was happening.
87Afterwards, you showed Ms Dang a Facebook message from Hung Thanh[10]. Mr Thanh had sent a message to a range of people connected with your Facebook page, stating, among other things, that Ms Dang was your girlfriend, that she was missing, and had been beaten and imprisoned, and went on to appeal for your address so that a rescue could be organised.
[10]A pseudonym.
88You asked Ms Dang for Mr Thanh’s location so that you could kill him. You accused Ms Dang of telling her friends you had assaulted her. She denied doing this; you slapped her. You asked her if she would like you to “take to the sea and throw her in”.
89At 9:15pm, you contacted Mr Thanh via Facebook, asking why he was telling people you had assaulted Ms Dang. Mr Thanh told you he wanted to have a video-call with Ms Dang so he could see her and make sure she was all right. You told Mr Thanh that Ms Dang was sleeping.
90You and Ms Dang went back to the bedroom. You directed her to lie still on the bed and not move or say anything while you video-called Mr Thanh. You positioned her so she was facing away from the camera. You then made a video-call on Facebook and told Mr Thanh that Ms Dang was sleeping. The call ended shortly afterwards.
91When Mr Thanh took this call at about 9:30pm he was with Ms Nguyen. Ms Nguyen watched the call and videoed it; this recording was later provided to police. In this video, filmed in what appears to be a restaurant, Mr Thanh’s phone shows the scene at your house, and a figure can briefly be seen in the background, lying down with her head on a pillow.
92After this call Mr Thanh sent you a message on Facebook asking when Ms Dang would be coming home. You said she would be home the next day; you told Mr Thanh not to send any more messages to his friends.
93After this call you were very angry; you said you would have Mr Thanh killed. You told Ms Dang that you were going to move her to another state because you were worried that police may arrive at the house soon. You packed a suitcase and told her to change her clothes.
94When Ms Dang asked where you were taking her, you told her “interstate”. She asked you not to take her anywhere; she told you her friends knew exactly where she was. You made her get into your car. You drove off. It was night.
95I pause here to note that the first occasion the subject of the false imprisonment, and content of Charge 1, relates to the period Ms Dang was at your house between Monday 25 March 2019, commencing with your first physical attack on her that evening, and concluding with your departure from the house in your car on the evening of 28 March 2019 (Charge 1: False imprisonment – occasion 1 of 3).
96At 10:34pm that night, being the Thursday, CCTV footage captured you filling up your car with petrol at a petrol station in Ballarat. In that image, the figure of Ms Dang can be seen sitting in the front passenger seat of your car.
97While you were driving, you directed Ms Dang in a short video. You told her that whenever you nodded your head she was to say yes, and whenever you shook your head she was to say no.
98Police obtained that video. It appears to be taken inside a car. It is dark, and a car indicator can be heard. The following exchange can be heard:
You:“[Dang] do you feel safe to stay with me?”
Ms Dang:“Yes.”
You:“Have I been hitting you?”
Ms Dang:“No.”
You:“Do you wanna stay with me more?”
Ms Dang:(pause) “Yes.”
99Once you filmed the video you disseminated it to your friends and her friends, including Mr Thanh – he later recalled receiving this message at around 10:52pm. You also sent Mr Thanh a message stating Ms Dang was fine and you were just going on a holiday. After receiving the video, Mr Thanh sent you a message asking to see Ms Dang’s face. You told him to wait until you finished driving.
100You drove on; Ms Dang fell asleep. At one point she awoke and saw a sign saying “Adelaide”. She asked you where you were taking her. You told her you were going back to your house.
101At some stage during that evening Ms Dang called Anh and said that you had told her that if the information about her was taken off Facebook you would release her on Friday but that you would otherwise kill her.
Offending Day 5: Friday, 29 March 2019
102At about 3:20am, you and Ms Dang returned to your house in Darley. She fell asleep in the bedroom.
103Again, I pause to note that the second event the subject of Charge 1, false imprisonment, relates to the period of driving late on the Thursday evening until the return to the house in the early hours of the following Friday morning (Charge 1: False imprisonment – occasion 2 of 3).
Ninth episode of sexual offending
104Later in the morning, Ms Dang awoke to you on top of her. You had removed her lower clothing and were penetrating her vagina with your penis (Charge 3: Rape – occasion 6 of 6).
105You then rolled her onto her side and put your penis into her anus (Charge 4: Rape – occasion 5 of 5). After a while, you withdrew and inserted it again into her vagina where you ejaculated.
106Ms Dang fell asleep. She awoke to you yelling at her asking how your ex‑wife knew you had imprisoned her. You showed her your phone. On it was a notice about a search for a missing Vietnamese woman who was living with ‘Robert Wilson’. You asked Ms Dang who posted the notice so you could have them killed.
107At about 1:30pm you told Ms Dang that you would take her home on the condition that she arrange for the posts to be taken down.
108You drove her home. On the way, you told Ms Dang that if she told anyone what had happened, when you got out of jail you would find her and her friends. You told her “You will be deported”. You returned her phone to her and told her you would see her in two weeks. You drove away. It was 3.00pm.
109This concludes the third episode of false imprisonment the subject of Charge 1. This episode covers the time after the return to the house in the early hours of Friday morning until she returned to her home.
Disclosure
110Ms Dang’s housemate Mr Nguyen[11] was home. He saw her injuries. He took photographs.
[11]A pseudonym.
111Mr Nguyen helped Ms Dang log out of her ‘Apple ID’ account on her phone. A few minutes after this was done, you made repeated calls to Ms Dang asking her if she had turned her mobile data off and telling her to turn it on. Mr Nguyen recorded two of these conversations. You called several more times; Ms Dang did not answer.
112Over the course of the day, Ms Dang began to disclose what happened to her to her friends. They saw her injuries.
113The next day, Saturday 30 March 2019, you sent Anh a photograph of Ms Dang engaged in a sexual act involving oral penetration and threatened to post it on Facebook if Mr Thanh did not delete the Facebook post about you. That image was later obtained.[12]
[12] The prosecution does not allege this particular photograph depicts a rape.
114At about 10:00pm that day, Ms Dang attended the Richmond police station with her friends. She began to disclose what had happened to her to a Vietnamese speaking police officer. She was taken to hospital by ambulance where she remained overnight and for most of the next day. The following evening, she commenced recording what had happened to her in a police statement.
Injuries
115Ms Dang was examined by a forensic medical officer whose findings included the following injuries:
· Swelling and numerous bruises and abrasions to the face including eye area;
· A sub-conjunctival haemorrhage to the left iris;
· Numerous bruises over her back, buttocks, right arm, right hand, and hips;
· 1cm x 1cm scab above the left elbow.
116High vaginal swabs were taken during the examination.
117A medical review conducted by an oral and maxillofacial practitioner on 3 April 2019 recorded the following:
· minimally displaced fracture of the right medial orbital wall (inside of eye socket);
· extensive facial contusions and oedema (bruising and swelling);
· difficulty opening her mouth due to pain.
118I note that the fracture does not form a represented occasion of Charge 6 but is relied upon by the prosecution as evidence of an assault perpetrated by you against Ms Dang during the false imprisonments.
Arrest and search
119On 2 April 2019 at 8:15am, police went to your house; they used a ladder to climb over the electronically-controlled gate to access the front door. You were arrested and the police executed a search warrant.
120When police asked you for your phone you took it and crushed it with your hands.
121The police saw closed metal shutters on every window of the house.
122In the main bedroom the following items were found:
(a) A television in the bedroom appearing to stream CCTV footage;
(b) A bloodstained aluminium pole on the floor;
(c) Bloodstaining on the floor near a massage chair and under the bed;
(d) Bloodstaining on a massage chair;
(e) Bloodstaining on a packet of baby wipes;
(f) A bloodstained fitted sheet;
(g) A speargun in a drawer of the bed base;
(h) A skin-coloured plastic sex toy or ‘penis extension’ in a set of drawers;
(i) Metal handcuffs in a safe;
(j) Jewellery in a safe.
Record of interview
123You took part in a record of interview with police. In it, among other things you said, that Ms Dang had spent these days with you but all sex was consensual. You admitted assaulting her, after you ‘lost your cool’ when you found out she had been unfaithful to you. You admitted to editing her phone contacts and arranging her change of phone number with Optus and to the driving trip. You made other denials. I return to some of your answers later in these reasons.
DNA Evidence
124Forensic examination of the various items yielded DNA results that would have been relied upon in proof of the charges: Ms Dang’s blood on the metal pole and in other places in the bedroom; sperm fraction of the semen taken from her body 100 billion times more likely if you were a contributor.
Call charge records
125Call charge records established the calls made by Ms Dang’s friends over several days. They also showed that you called Ms Dang approximately 24 times between 2:50pm and 9:47pm on Friday 29 March 2019; that is, from the time she returned home to her apartment and into that evening.
PART 2 – SENTENCING CONSIDERATIONS AND DISPOSITION
Personal circumstances
126You are now 35 years old; you were 33 at the time of your offending. You are of Aboriginal heritage (on your father’s side), though I note your counsel submitted that this part of your heritage is “not a matter that looms large in this plea”.[13]
[13]The question was answered in the negative in the police interview.
127You were born in Melbourne; your family relocated to Tasmania when you were seven or eight. You are the middle child of five. One of your brothers was injured in a violent incident in 2008. Another brother died in his sleep.
128Your early family circumstances were described as chaotic; you witnessed your father acting violently. You had a difficult relationship with him: he drank heavily and used drugs and was imprisoned when you were about five years old. Your relationship with your father later deteriorated to the point where you were evicted from the family home at 15 years old. You remained then, and are now, close to your mother.
129You were educated in Tasmania until year 10. You worked intermittently as a labourer and in other unskilled jobs, particularly auto wrecking and informal trading in used car parts. This was the work you were undertaking at the time you committed these offences.
130Although you have previously abused substances (using cannabis heavily and methamphetamine in the wake of the loss of your brother), those issues, your counsel submitted, were not troubling you at the time of your commission of this offending.
131You have ongoing relationships with your family. Your parents are still together; they live now in Victoria. Your uncle passed away while you were on remand and you missed his funeral; you have an aunt with whom you were close who is now suffering from lung cancer.
132In prison, you have worked as a cleaner for the past 18 months. You have done all the courses that have been available to you in custody.
133You had one seven-year relationship with a woman, the mother of your two daughters, but you separated from her in 2017. At first you saw your two daughters (now aged 8 and 10 years) during your period on remand (in person, then by video) but this contact has now ceased. I understand that proceedings are on foot in another jurisdiction in relation to your contact with your children.
134You remain in contact with your aunt from custody. You speak with your mother and a brother less frequently; you are in irregular contact with your father. You intend to remain in contact with your family while you serve your sentence; you hope you will still have their support when released.
135At your plea hearing, you admitted the facts as set out in the prosecution opening, acknowledged the offending described there, and did not challenge the prosecutor’s characterisation of the seriousness of the rape and false imprisonment charges. Through your lawyer, you conveyed your understanding that you now face the consequences of what you did.
Structure of the indictment
136I note that there are a number of overlapping legal structures with which I must grapple in arriving at this sentence. First, I have the maximum penalties for the offending: for rape this is 25 years’ imprisonment, and the statutory maxima for false imprisonment, theft and causing injury intentionally are 10 years’ imprisonment.
137Next, I note that each of the rape charges is a rolled-up count of seven, six, or five events of penetration (18 in all), categorised and charged according to the form of penetration. The theft charge is a rolled-up count of two incidents, and the charge of intentionally causing injury is a representative count.
138Next, each of those events of penetration occurred across nine separate episodes of sexual activity; some of those penetrative events occurred in ways such as to attract consideration of the ‘one transaction principle’.
139I must also consider the standard sentence for rape, being 10 years. Next, I must arrive at appropriate sentences and orders for cumulation and concurrency, having regard to the need to avoid double punishment while taking into account the circumstances of each offence. I must take into account the principle of totality more generally, and also sentence you as a serious sex offender on Charge 4, which then requires me to give particular consideration to the role of community protection. This is a structurally complex task and I will come to each of those matters in turn.
140I add that I am not critical of the way this indictment has been framed: it delivered a much-needed resolution of this case. But because of this structure the calculus I undertake will not be patent on the ultimate numbers; I will do my best to be very clear in the form of my reasons.
Nature and gravity of the offending
141Before I come to the assessment of the gravity of this offending, I pause to note the content of this case is capable of inspiring a sense of outrage. I am conscious of the need to not be overwhelmed by the nature of the material in arriving at your sentence.
Assessing the gravity of the rape charges
142Rape is an inherently grave offence as indicated by the maximum penalty.
143Your rapes of Ms Dang encompass eighteen separate acts (in 3 rolled up charges) of penetration during which you did not have a reasonable belief that she was consenting. It is clear from authority that a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence.
144In assessing the gravity of the rapes I will take into account the circumstances in which they occurred. There were nine transactions identified in the prosecution Annexure A. It is not alleged that your first rape of Ms Dang on the Monday evening was a premeditated one. However, the circumstances of the rapes that followed compel the conclusion that there was a contemplated quality to the them. Once you made Ms Dang your prisoner, and over the days that followed, large passages of time elapsed during which you might have reflected on what you were doing and released her.
145Your rapes of Ms Dang unfolded over five calendar days, during which time you also did the following things to her body:
(a) punched her to the face and head repeatedly until her face became swollen and she was unable to see out of one eye;
(b) while she was on the floor, stomped on her stomach such that she defecated in her underwear;
(c) punched and kicked her while she lay on the ground;
(d) lifted her by her ankles like a toy and dropped her to the ground;
(e) removed her underwear and kicked her in the vagina;
(f) strangled her around the neck and throat;
(g) held her by the hair and used your hands to pull her head back and forth on your penis while penetrating her orally;
(h) handcuffed her;
(i) beat her with a metal bar until she bled;
(j) held a speargun-shaped weapon to her head;
(k) caused her extreme pain by penetrating her anally;
(l) woke her by pulling her hair and demanding her PIN number;
(m) kicked her to the back of the knee causing her to fall down; and
(n) slapped her face to wake up so you could continue raping her.
146You did the following things, among others, to her that were additionally humiliating and degrading:
(a) forced her to swallow your ejaculate mixed with her own faeces;
(b) told her that her face was so deformed that nobody would recognise her and that all she had left was her teeth and hair;
(c) after she had spat out your ejaculate, you forced her, under threat of her death, to swallow it, which then caused her to vomit;
(d) photographed her while you were raping her;
(e) in a separate incident you threatened to transmit, and then did transmit, a photograph of her during an act of penetration;
(f) forced her to penetrate you with her fingers;
(g) told her she would never be able to go anywhere again;
(h) told her she would be deported;
(i) told her you could make her into a moneymaking tool by prostituting her to other men.
147You controlled Ms Dang’s liberty by keeping her in your house with full-length metal shutters, an electronically-controlled metal fence, CCTV cameras trained outside the house with a viewing screen inside the bedroom, and an alarm in the corridor that was activated when she stepped outside your bedroom. You controlled her access to her phone, you deleted her contacts, took away her ability to contact help; this culminating in you calling her telephone service provider and making her request to change her phone number. You told her that from now on she had to stay with you permanently. You took her money by using her bank details and transferring her money to you.
148You attempted to subdue Ms Dang with threats of her death, or disfigurement. You told her you would shoot her in the eye, take her to the sea and throw her in; you drove her in your car somewhere to the west of Melbourne in the middle of the night; you threatened to kill the people who were trying to find her.
149You exposed her to the risk of pregnancy and sexually transmitted disease.
150You manipulated her contact with her friends, and directed a chilling ‘proof of life’ video, in which she weakly asserts she is safe.
151Your rape of her continued over four days, during which she deteriorated physically and psychologically. She stopped eating. Her face was swollen and injured.
152I have taken into account the chronology and content of the separate events as set out in Annexure B of the prosecution submissions.
153By the ninth episode of sexual activity, occurring on the Friday, during which you raped Ms Dang vaginally and anally, she had been imprisoned since the Monday: threatened, assaulted, injured and humiliated over several days.
154Moreover, Ms Dang was a particularly vulnerable victim. She is a slight person: 45 kilograms to your 105. She did not know where she was or how to describe your address. Her visa had expired, and you knew it, hoping, it would seem, to exploit this fact to avoid your detection. Over time she became more vulnerable.
155I assess the gravity of the three rape charges in the context of all the facts in the prosecution opening.
156As the Court of Appeal said in R v Mason, rape is an “intensely personal crime” which affects the victim physically and psychologically. It attacks a victim’s sense of self.[14] Rape is, fundamentally, an act of violence, which occurred in this case within a broader range of other violent and degrading acts.
[14]R v Mason [2001] VSCA 62 [8].
157As the Court said in DDJ: prolonged sexual abuse becomes more serious more it endures:
“The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.”[15]
[15]DPP v DDJ (2009) 22 VR 444 – 452 [32].
158Your persistent rape of Ms Dang was embedded in a “grossly horrific context”[16]. The harm of each rape was compounded by those that came before and after it and by the circumstances as a whole. This was boundless cruelty. It is almost incomprehensible.
[16] DPP v Granata [2016] VSCA 190 [83].
Distinction between the objective gravity of three rape charges
159Ms Champion, who appeared with Ms Martin for the Director, submitted that there is difficulty elevating the seriousness of one rape charge over another – a crude calculation of the number of separate incidents of penetration does not suffice; I accept this submission. The rapes at the end of the period of Ms Dang’s imprisonment were more serious because of the cumulative effect of what you had done to her.
False imprisonment – gravity
160Turning now to my assessment of the gravity of the false imprisonment charge. I note again that this is a rolled-up count encompassing three occasions before, during, and after the car journey on the Thursday evening.
161I have already dealt with much of this material in the context of my assessment of the gravity of the rape charges and I will not repeat it here. This was a prolonged imprisonment. It was ongoing between the rapes; periods when was Ms Dang was waiting while she was your prisoner. It included breaks during which you might have desisted. The episode of driving into the night in your car must have been particularly terrifying, and the return to your house on the Friday morning particularly devastating.
162I am very alert to the need not to doubly punish you for acts that I have already taken into account in my calculus of the objective gravity of the rape charges. The prosecution urged me to take into account the circumstances of the false imprisonment only at the moment of the actual rape unfolding, and to set aside and recalculate those times between rapes in my assessment of the objective gravity of the false imprisonment. I do not adopt this approach. It is too mechanistic and does not allow me to assess the cumulative gravity of some of the rapes.
163While conscious of the need not to doubly punish, I do recognise that the false imprisonment does involve some separate and distinct criminality.
Intentionally causing injury – gravity
164I first note that this is a representative charge and, all other things being equal, is to be regarded as more serious than a single isolated offence, and accordingly will generally result in a longer sentence. In understanding this charge, I bear in mind that the offence, in which you attack Ms Dang with an iron bar, causing an injury to her elbow, was not an isolated one, and must be seen in its full context; it has a bearing upon the extent of your culpability, the need for specific deterrence, and informs my analysis of your prospects for rehabilitation.
165I am also conscious that I am not to sentence you for what are in substance a series of uncharged acts. Rather, those uncharged acts are relevant to my assessment of the objective gravity of the charged act; that is, of your hitting Ms Dang with the pole until she bled.
166At the time you injured Ms Dang to the elbow, she could not see out of her left eye because of your previous assault of her.
167Again, I am conscious that I have taken into account your broader physical treatment and assault of Ms Dang in calculating the objective gravity of the rapes and I am careful not to doubly punish you for this conduct.
Theft gravity
168You threatened Ms Dang in order to get her banking passwords. You stole her money by moving funds from her account into yours. This is a charge encompassing two such thefts. I am careful not to aggravate this charge by reference to the threat and what is not charged as a robbery. Again, I am conscious of the need not to doubly punish you.
169You stole from a woman earning her living as a trainee nail technician, while she was imprisoned by you.
Moral culpability
170Turning now to consider your moral culpability.
171Just before the seventh episode of sexual activity you were interrupted by a phone call which caused you to meet a man outside who arrived on a motorcycle, after which you then returned to the bedroom to rape Ms Dang. You apparently conducted your trade in car parts while imprisoning Ms Dang. You conversed with three men who came to the house for this purpose.
172You engaged with the people searching for Ms Dang and attempted to manipulate them with a combination of threats, false assertions and staged videos.
173You threatened to send, and did send to a friend of Ms Dang an intimate image of her engaging in a sexual act.
174In his restrained and considered submissions, Mr Kenny, who appeared on your behalf, did not advance explanations or excuses for what you did. He did not plead, for example, mental illness, intoxication, or addiction; nor did he plead your insight, contrition, or remorse. I must sentence you then simply by reference to what you did, and how you did it, and, to some degree, what you said about it afterwards to police.
175I conclude that you did what you did to Ms Dang because you wanted to do it and because you thought you might get away with it and because nothing about her humanity restrained you.
176I conclude that the gravity of your offending and your moral culpability are both extremely high.
Prior criminal history
177You have a prior criminal history in Victoria and in Tasmania. It is an enduring record but much of it relates to dishonesty and traffic offending, though you do have prior convictions for personal violence, which therefore illuminate your culpability in relation to the current offending. You were convicted of contravening a family violence safety order in 2019 in relation to the mother of your children.
178While the facts that you ultimately pleaded to are not totally clear, you also have one prior conviction for committing an act of violence against an intimate female partner – in 2005.
179You have two other convictions for personal violence.
180Your history is relatively minor, though the priors for acts of violence or abuse against female partners are of note, there is nothing even remotely like the offending now before the Court.
181I sentence you in the context of your prior criminal history; it informs sentencing calculus in a range of ways to which I will return.
Standard sentencing
182Before going further I pause to note that Charges 2, 3 and 4, rape, attract the ‘standard sentencing’ provisions in the Sentencing Act. I note the ‘legislative guidepost’ of 10 years’ imprisonment for the offences of the ‘middle range of seriousness’ – referable only to the nature of the offending and without reference to matters particular to you.[17]
[17]Brown v The Queen [2019] VSCA 286 [25]
183In this case, I will take into account all of the matters I am required to consider under s5(2) of the Sentencing Act 1991, including the standard sentence for Charges 2, 3 and 4 before me. I incorporate the standard sentence into my instinctive synthesis of all the relevant matters in your case and, for reasons that I will now embark upon, I have concluded that the sentences for these three charges will fall above the standard sentence of ten years.
184I will consider the standard sentence regime again when I come to the question of current sentencing practices for the crime of rape.
‘One transaction’ principle
185Where your acts of penetration occurred as part of a ‘one transaction’ episode of sexual activity (identified in the prosecution Annexure A), I apply that principle in assessing the gravity of the offending. So while episode ‘1’ stands alone (one count of oral penetration occurring on the Monday and making up part of charge), episode ‘2’ combines anal, vaginal and oral acts of penetration and gives rise to events that are rolled up under each of the three rape charges. In doing this, however, I have noted that some of these transactions are less susceptible to the application of this principle; for example, where the second or third penetrative events each have features that are particularly painful or degrading.
Need to avoid double punishment
186Here, some of your conduct is relevant to the gravity of more than one of the charged offences.
187I have assessed the rape charges in the light of the circumstances of Ms Dang’s deprivation of liberty, her injury, and having her money stolen from her.
188This process results in the sentences for the false imprisonment and the injury appearing on their face to be artificially low, rather than being dealt with entirely by the reduction in the orders for cumulation, because individual sentences on the record still matter even if wholly concurrent.[18] That is a result of my approach. Further adjustment will be required as I apply the principle of totality after the sentence as a whole is calculated.
[18] R v Orgill [2007] VSCA 236 at [18]–[19]
189My orders for cumulation, from a general deterrence point of view, will reflect the need to make sure that after one act it cannot be said that you or any other offender can carry on acting in the same way with impunity.[19]
[19]DPP v Grabovac [1998] 1 VR 664 at p 683-4
Avoiding a ‘crushing’ sentence
190I am also aware of the need to avoid a crushing sentence. The need for modest cumulation grows as individual sentences lean toward the higher end of the available range.[20]
[20]DPP (Vic) v Drake [2019] VSCA 293 [25] at FN 20.
191I am conscious too of the statement of Justice Redlich in Azzopardi:
“If a total effective sentence is unduly punitive by going beyond what is necessary to achieve sentencing objectives, the assumption is that it will be positively harmful to the proper aims of the criminal law. It does not promote consistency of sentencing. The sentence is unjust. It will not make due allowance for the progress of the offender’s rehabilitation during the term of his sentence. Its unfairness gives rise to the risk that the prisoner will become ‘hopeless, aggressive or otherwise intractable … making it more rather than less likely that he will eventually offend again.’ ”[21]
[21]Azzopardi v The Queen [2011] VSCA 372 [42]
192I bear in mind that the severity of sentence is exponential and not linear; the severity of incarceration deepens over time.
193I have applied the principle of totality; this will cause me to lower the cumulation so that the final numbers reflect the appropriate sentence as a whole.
194Because of the sentences that I will impose on Charges 2 and 3 you fall to be sentenced as a serious sexual offender on Charge 4 pursuant to section 6B(2)(a) of the Sentencing Act 1991. I must therefore regard the protection of the community from you as the principal purpose for which the sentence is imposed on that charge. I must give this legislative requirement full weight, while not abandoning the principle of totality.[22]
[22]Zhao v The Queen [2018] VSCA 267 [91] and following.
Comparable cases and current sentencing practices
195In considering the sentences in this case I have had regard to current sentencing practices for similar offending: no case is quite like yours but I have considered the landscape. In relation to Charges 2, 3 and 4, I have confined my consideration to the growing pool of cases decided in this and higher courts in relation to rape sentences delivered after the standard sentence scheme was introduced. Many of these cases, I accept, are ‘instructively different’.
Effect on Victim
196Unsurprisingly, the effect of what you did to Ms Dang is profound. She relives what you did to her. She was paralysed with fear much of the time you were harming her but her “will to survive was strong”, she writes, in her victim impact statement. She said she feels different now, and thinks that she will never be normal again. She is frightened of men. She is lonely but cannot contemplate being in a relationship. She suffers from nightmares. She feels exhausted on account of existing in what feels to her to be a permanent state of flight. It took two months for her facial swelling to subside and to look like herself again. She talks about her degradation, shame, and humiliation as well as her physical pain.
197The effect of your offending on Ms Dang’s health and integrity have been catastrophic. I acknowledge Ms Dang’s suffering as the result of what you did to her. I take this into account in arriving at your sentence.
198I also acknowledge, parenthetically, Ms Dang’s courage and endurance, not only for surviving what you did to her, but in embarking on the herculean task of describing, first to her friends, then to police, and later still to a court, what you did. Her endurance of this – that is, of describing what happened to her – is acknowledged. It cleared the pathway to justice in this case and therefore to a safer community. In saying that, I am careful to note that I do not count the process of cross-examination of Ms Dang, difficult as it was, against you in this sentence; you were entitled to pursue that course. Not one second of the sentence I will impose will be served on account of your decision to test Ms Dang’s evidence.
199Returning to my task: rape, Mr Wilson, is an intensely personal crime; it attacks a person’s sense of self. You did this to Ms Dang many times, and now you will be held to account.
Procedural chronology
200I pause here to note a condensed procedural chronology of your case. You were arrested on 2 April 2019 and remanded into custody. A contested committal hearing in the Magistrates’ Court on 6 November 2019 ultimately proceeded by way of straight hand-up brief, and pleas of not guilty were entered.
201Between 7 November 2019 and November 2020 a range of directions hearings were held and an application for preliminary cross-examination pursuant to s198B was heard and granted. The first listing of what was to be preliminary cross-examination was adjourned to allow you the opportunity to seek an expert report on the subject of involuntary acts carried out during sleep.
202A change in your lawyers took place over five mentions in this court between December 2020 and May 2021 as new counsel and funding issues were settled.
203Cross-examination pursuant to the s198B application commenced on 12 July 2021; it was adjourned to 5 October 2021 part heard, it resumed and concluded between 5 and 7 October 2021. The trial, listed for 5 November 2021, was vacated due to the pandemic. Pre-trial applications were made and ruled on. It was relisted to commence on 18 February 2022; it was anticipated to take 20 days.
204On 15 February 2022 you made an offer to plead guilty to the charges now on this indictment; that offer was accepted, and on 21 February 2022 you were arraigned and entered your pleas of guilty to these charges.
Matters in mitigation
The value of the plea
205You pleaded guilty to the charges on the current indictment in the week before your trial was to commence. Yours was not an early plea. Ms Dang was cross-examined over three days, but delays in those days were as the result of reasons not attributable to you.
206Your plea delivered vindication and finality for Ms Dang. It tells her: you Ms Dang, were believed. It prevented her from having to relive this event a final time in front of a jury. I regard that as terribly important. Your plea’s value will manifest in a very significant discount on your sentence, measurable in years.
207It was submitted by your counsel that your plea of guilty also reflects, more subjectively, a degree of acceptance of your responsibility for what you did. You are, I accept now, recipient; you accept that it is now time for you to be punished. I accept this submission.
208You pleaded guilty in the time in which the administration of justice in Victoria has been subject to delays flowing from the COVID‑19 pandemic. Now, in July 2022, real inroads are being made into the backlog of cases before the court, and trial waiting times continue to contract. None of this detracts from what the Court said in Worboyes v The Queen:[23] you saw to it that your case was one more removed from an overburdened list.
[23]Worboyes v The Queen [2021] VSCA 169
209The subject of remorse was not pleaded in mitigation of your sentence; that could not and does not aggravate your penalty; I mention it only for completeness.
210The only matter that potentially disturbs this position was a statement that you made to the Court through your counsel in the final moments of the plea’s final day. Through Mr Kenny you expressed your sincere apology, that you took full responsibility, and recognise that this apology in itself may even be upsetting. Your barrister acknowledged the limitations of this statement. It is very late. I do not disregard it; that it has occurred to you at all to make it is better than being entirely absent. It does not disturb the neutral position in relation to remorse.
Delay
211There has been significant delay in the conclusion of your case; it is sufficient to say that there have been delays to the resolution of your case caused by measures to address the pandemic and that you have been on remand throughout that time and living in a state of uncertainty. I take the punitive effect of this into account.
Conditions of custody – including isolation after sentence – quarantine
212Moreover, much of your remand since your apprehension on 2 April 2019 has been spent in custody during the pandemic. It is universally accepted that this has imposed more onerous conditions on the prison population, you included. Your visits from your daughters were limited by these conditions for a time. I invited submissions from your barrister as to the effect of that particular custodial environment on you, but in particular the effect of my decision to bring you to court in person for this sentence. As it transpired, I received advice of a Covid outbreak at Hopkins prison; this caused me to sentence you on video which avoided the need for me to consider the privation of additional quarantine, but I take into account the other privations that you have experienced as a result of the COVID‑19 pandemic, into account.
Steps toward rehabilitation
213Your counsel submitted that your rehabilitation will be contingent upon you engaging in sex offender treatment programs to address your behaviour while you are still in gaol. It was submitted that so far you have taken advantage of every program offered to you. Your counsel submitted that it was clear that you need to engage in treatment; your separation from your two daughters provides, it was submitted, significant motivation for you to do everything that you can. I accept that you have that motivation for your improvement without necessarily finding that it will be an easy process for you. I find your prospects for rehabilitation are guarded or grim.
214I note that no Bugmy principles were pleaded in your case, but I take into account, more generally, that you came from a chaotic household with a family already touched by incarceration and I bear this in mind in your favour on sentence.
Purposes of sentence
215Turning now to the purposes of this sentence, Vincent JA in DPP v Short stated:
“The courts, when dealing with [rape] cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion.”[24]
[24][2006] VSCA 120 [42]
General deterrence
216I turn first to the application of the principle of general deterrence in your case. For reasons I have already articulated, general deterrence is a central pillar of this sentence; these numbers and the words with them must communicate clearly to others what will happen to them if they behave in a similar way. This was intimate partner violence, a factor that was not pressed with great force by the prosecution; however, I am conscious of the need in particular to impose a sentence that communicates to partners, spouses and intimate friends that violence and rape of the person you are supposed to have affection for and are intimate with will be regarded extremely seriously by the courts.
Specific deterrence
217In the light of my conclusions about your prior history and the gravity of the offending before me, I also regard specific deterrence as central to the sentencing exercise here.
Just punishment
218A just sentence in this case requires very substantial punishment; you have, Mr Wilson forfeited your right to your liberty for a very long time, and I have no doubt that this will be a very great deprivation and loss for you, falling, as it does, in what ought to have been the most prosperous years of your life.
Community protection
219I regard community protection as an important feature of this sentence, and for the time being this will be provided by way of your removal from normal life. The sentence I must impose on Charge 4 elevates this purpose to be the principal sentencing purpose.
220The prosecution did not argue for a disproportionate sentence, and I will not impose one.
221Section 6E of the Sentencing Act directs that the sentence on Charge 4 must cumulate on other sentences unless I order otherwise.
222An assessment for the need for community protection requires me to address the question of the risk you pose to the community. As the Court said in DDJ, in dealing with a criticism that the sentencing judge failed to give proper regard to the protection of the community:
“This criticism is misconceived. What sentence will be required in order to protect the community against a serious sexual offender will always depend upon the court’s assessment of the risk which the offender presents. Her Honour did exactly what was required in assessing whether and to what extent DDJ was a continuing risk.”[25]
[25]DPP v DDJ (2009) 22 VR 444
223I will approach the question of risk through the test that I am required to perform in relation to the application for your registration under the Sex Offenders Registration Act. This exercise does not form part of the sentence, but as it involves some of the same analysis it is helpful to start there.
The record of interview
224One of the ways I assess your risk and your prospects for rehabilitation is by reference to what you said in your interview with police. I acknowledge that much of your interview you now must resile from by virtue of your plea. However, some of your statements warrant attention.
225Your record of interview contains what are unexceptional statements apparently directed at avoiding liability. None of this matters now, but more concerning is your casual contempt for Ms Dang in your answers in that interview.
226At Q 123, the following exchange takes place:
“A:She’s been in the car. We’ve been for a drive out to Ararat. We pulled up at petrol stations where I’ve had to, you know, hop out of the car and fill up and – – –
Q:O.K. We’ll go through all that in a minute. Before we go on – – –
A:Like, ’cause women are cunts.
Q:– – – I just want to go back to when you said you smacked her a bit. Tell me where you hit her exactly.
A:The face, body. I dunno, I was, yeah, just in a bit of a rage, lost my cool.”
227And as part of the answer to Q 472 you say:
“You know, like, so what, every time she’s jumped on top of me and had sex with me, is that I’ve raped her, you know what I mean? Like, seriously, you know what I mean, fuck, man, like, this is a joke, you know what I mean. Like, if she’s starting that, mate, like, you know, she’s probably done it to get a bit of fuckin’ cum in her or something, you know what I mean, to fuckin’ try and fuck me over like this.”
228When I raised these statements with your counsel, he conceded that these statements can be taken as expressions of more general attitudes underlying the conduct that preceded them. That you could treat Ms Dang this way, in combination with what you say about it, speaks to your thinking about women more generally.[26]
[26]Director of Public Prosecutions v Eric Frank (a pseudonym) [2021] VSCA 163.
Assessment of risk after incarceration ends
229In this case, the prosecution applies for an order for your registration pursuant to s11 of the Sex Offenders Registration Act 2004 (Vic) (“SORA”). As the result of your plea, you satisfy the definition of ‘serious sexual offender’ (s8(3) SORA). The Court may, in your case, make an order for registration, if satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community (s11(3)SORA). As the Court said in Bowdenv The Queen, the assessment of this risk pertains to the risk posed once released, and does not relate to risk posed during the period of incarceration.[27]
[27]Bowden v The Queen [2013] VSCA 382 [34].
230The assessment of that risk then, is in relation to a time some years from now.
231While the registration under SORA does not form part of my sentence, the consideration of risk does relate to my consideration of specific deterrence, community protection, and the application of the serious sex offender provisions on Charge 4.
232As the Court said in DPP v Moses:
“[A]n order for registration can only be made if the court ‘is satisfied beyond reasonable doubt ... that the person poses a risk to the sexual safety of one or more persons of the community.’ His Honour was so satisfied and ordered that M be registered for a period of 15 years. That was, in our view, a very significant conclusion about the risk to the community which M presented, and it bore directly on the statutory requirement that community protection be treated as the principal purpose of the sentence.”[28]
[28]DPP v Moses [2009] VSCA 274 [49]
233The prosecution submitted that I was not capable of making an informed assessment of that risk on the material before me, there being no expert material filed and no explanation or context pleaded in relation to the offending.
234The prosecution submitted that I should order that a pre-sentence report be prepared pursuant to s8A (specifically ss(l) and (m)) of the Sentencing Act.
235Mr Kenny argued that no such report should be prepared. He submitted that he did not make any submission in mitigation that would enliven this enquiry. He argued that the matters referred to in s8B of the Sentencing Act do not contemplate an order for this purpose. I infer, from the conduct of the defence case, that careful thought was given to whether psychological material might be advanced in mitigation of sentence on this plea and a considered decision was made not to advance any such material.
236I decline to order a pre-sentence report for the following reasons:
237This is an adversarial system, and you, Mr Wilson, having admitted to each of the elements of each offence and accepted the contents of the prosecution opening, are not required, and ought not be required, in effect compelled, to advance anything further on your plea.
238I have before me your admitted offending, and parts of what you said about it afterwards, as well as your prior criminal history.
239I have your lawyers’ submissions, and accept that you are agreeable to undertaking sex offender treatment when offered this.
240I do not accept s8 of the Sentencing Act supports the ordering of a pre-sentence report in the circumstances.
241This sentencing process is, at the end of the day, a legal problem, and one that I must resolve as best I can without the help of medicine or psychology.
242I also have the authority Court of Appeal’s statement in the case of Bowden:
“There will be cases in which expert opinion will be essential to a finding of risk. In many cases, like the present, while an opinion will greatly assist a sentencing court, the circumstances of the offences, the offender’s prior history, the offender’s conduct since offending, and the offender’s prospects of rehabilitation will be sufficient without such an opinion to allow a conclusion to the requisite standard as to the existence of risk.”[29]
[29]Bowden v The Queen [2013] VSCA 382 [47]
243In this case, I refer to your prior criminal history, the circumstances of your offending, your conduct in the record of interview, and my assessment of your prospects for rehabilitation, and conclude, beyond reasonable doubt, that you will pose the relevant risk for SORA registration at the time you become eligible for release. This does not preclude the possibility that you will, as the result of time and treatment, present as a lower risk than you would pose were you to be released now. The risk may be lower than it is today, but still sufficient, I find, to satisfy the threshold.[30]
[30]Bowden v The Queen [2013] VSCA 382 [37]
244Fundamentally, the content of your offending drives my conclusion. In considering the need for the “protection of the community” in the case of Granata, when the accused man was facing a lengthy period of incarceration, the Court said (even though in possession of a psychiatric assessment of the accused):
“Most fundamentally, perhaps, the protracted, repeated and savage nature of the offending by a man of mature years raised a substantial issue of protection of the community in itself and further supports the imposition of a greater total effective sentence than that imposed by the sentencing judge.”[31]
[31]DPP v Granata [2016] VSCA 190 [122]
245By reference to the foregoing, I find there is a need for community protection, and I will apply this as the principal consideration to arriving at the sentence on Charge 4.
246I will make the order for SORA registration for life.
247I will apply the need for your specific deterrence and community protection more generally in arriving at this sentence.
Denunciation
248The community expects unequivocal denunciation: this conduct will not be tolerated or excused.
249If there was ever any reservoir of tolerance for such offending, it is well and truly dry now.
250Rapes of this kind cause great disquiet in the community. They destroy the sense of security which every person is entitled to feel when at home.[32]
[32]DPP v Moses [2009] VSCA 274 [22]
Disposition
251I formally note, in the records of the court: you are being sentenced as a serious offender on Charge 4.
252On Charge 1, false imprisonment, you are convicted and sentenced to two years’ imprisonment.
253On Charge 2, rape, you are convicted and sentenced to 14 years’ imprisonment.
254On Charge 3, rape, you are convicted and sentenced to 14 years’ imprisonment.
255On Charge 4, rape, you are convicted and sentenced to 15 years’ imprisonment.
256On Charge 5, theft, you are convicted and sentenced to 10 months’ imprisonment.
257On Charge 6, causing injury intentionally, you are convicted and sentenced to 14 months’ imprisonment.
258I make the following orders for cumulation.
259Charge 4 will be the base sentence.
260I direct that 3 years of the sentences on Charges 2 and 3, 1 year of the sentence on Charge 1, and six months on the sentence on charge 6 will be served cumulatively upon each other and upon the sentence on Charge 4. To be clear, I make no order for cumulation of the sentence on Charge 5. This results in a total effective sentence of 22 years and 6 months.
261I direct that you must serve a total of 16 years before becoming eligible for parole.
Pre-Sentence Detention
262Pursuant to s18 of the Sentencing Act I declare that you have already served a total of 1207 days’ imprisonment up to, but not including today: these days are to be reckoned as already served pursuant to this sentence.
Section 6AAA
263I note that had you not pleaded guilty but been found guilty by a jury I would have imposed a total effective sentence of 29 years and six months with a non-parole period of 19 years and nine months.
Ancillary Orders
264The prosecution applies for the forfeiture of items used in connection with this offending, and I make that order as sought. I also make the order for disposal of the items of negligible value set out in the draft disposal order.
265I make the order sought under the Sex Offenders Registration Act, for life.
ANNEXURE A
EPISODES AND OCCASIONS OF RAPE
| DAY | EPISODE | CHARGE | OCCASION* | FORM OF PENETRATION |
| MONDAY 25 March 2019 | 1 | Charge 2 | 1 | Oral |
| 2 | Charge 3 Charge 4 Charge 2 | 1 1 2 | Vaginal Anal Oral | |
| TUESDAY 26 March 2019 | 3 | Charge 3 | 2 | Vaginal |
| 4 | Charge 2 Charge 3 Charge 4 Charge 2 | 3 3 2 4 | Oral Oral | |
| WEDNESDAY 27 March 2019 | 5 | Charge 3 Charge 4 Charge 2 | 4 3 5 | Vaginal Anal Oral |
| 6 | Charge 4 Charge 2 | 4 6 | Anal Oral | |
| 7 | Charge 2 | 7 | Oral | |
| THURSDAY 28 March 2019 | 8 | Charge 3 | 5 | Vaginal |
| FRIDAY 29 March 2019 | 9 | Charge 3 Charge 4 | 6 5 | Vaginal Anal |
* ‘Occasion’ refers to an occasion of rape specific to a charge, e.g. Charge 3, occasion no. 1.
ANNEXURE B
NATURE AND GRAVITY OF EACH OCCASION OF RAPE
CHARGE 2 – ORAL RAPE
Summary:
a.Seven occasions across 6 episodes.
b.Occurred on each of Monday, Tuesday and Wednesday.
Occasion one
First episode of rape. Monday. Single form of penetration.
Occurred following both the commencement of the false imprisonment and a physical assault including being stomped on, kicked to the vagina and strangled.
Victim felt dazed and immobile, due to the assaults, during the rape.
Occasion two
Second episode of rape. Monday. Victim also vaginally and anally raped.
Occurred following removal of her phone and bankcards by the offender.
Occurred after being dragged along the ground towards his bedroom which escalated her fear.
Victim was humiliated, degraded and threatened. Rape occurred following anal rape. She could smell and taste faeces. She told him she could not comply with his demand to swallow his ejaculate as it was covered in faeces. He threatened to beat her to death if she did not, so she did out of fear and felt sick.
Occasions three and four
Fourth episode of rape. Tuesday. Two separate oral penetrations separated by vaginal and anal penetrations.
Occurred in the evening. She had not eaten anything that day or the previous day. She could not see out of her left eye due to the previous assaults.
Rape was preceded by a significant level of violence including the use of weapons. The victim was repeatedly punched to the face and head and simultaneously taunted. She was struck multiple times with a metal bar causing her to bleed heavily from the elbow. The offender pointed a speargun at her head and said he would kill her straight away causing her to beg for her life.
Victim was degraded and threatened. Episode concluded with oral penetration. Forced her, despite her distress and pain, to swallow his ejaculate by threatening to kill her. She then vomited.
Occasion five
Fifth episode of rape. Wednesday. Victim also vaginally and anally penetrated.
The evening before, after the fourth episode of rape, the offender told the victim that from now on she would be there permanently and could not leave the house and threatened to prostitute her if she disobeyed him.
She had trouble seeing out of both eyes. She could not eat due to pain and poor eyesight. She had not eaten on Monday, Tuesday or Wednesday. On this day she was very weak, limping and had to use the wall to support her walking.
Throughout this day the victim was terrified of being hurt again.
Victim was again subjected to degrading treatment by being forced to swallow his ejaculate.
Occasion six
Sixth episode of rape. Wednesday. Victim also anally penetrated.
She was in the same physical and psychological condition as described for Charge 2, occasion five, except now her left eye was swollen shut.
Immediately prior to orally raping her, the offender cruelly and chillingly taunted the victim and threatened to smash out her teeth and disfigure her. He told her to ‘finish’ him.
Her mouth was sore but she submitted to the oral rape to avoid being anally penetrated. The rape caused her pain. The offender alternated between oral and anal penetrations for about half an hour.
When unable to be sexually satisfied, the offender beat the victim with the metal bar. She begged him to stop and she apologised. He then pointed the speargun at her head and said he would shoot her in the eye.
Occasion seven
Seventh episode of rape. Wednesday. Single form of penetration.
Occurred subsequent (after a break where the offender met a man outside his house) to being beaten with the metal bar and threatened with the speargun as described for Charge 2, occasion six.
He degraded and humiliated the victim by taking photographs of her whilst being raped.
He threatened to send the photographs to her friends and family if she went to the police. The victim was particularly fearful of this occurring.
Rape continued for about two hours.
She was slapped hard on the face whilst being raped.
CHARGE 3 – VAGINAL RAPE
Summary:
a.Six occasions across six episodes.
b.Occurred on each day between Monday and Friday.
Occasion one
Second episode of rape. Monday. Victim also anally and orally raped.
Rape occurred after removal of her phone and being dragged, etc, as described above for Charge 2, occasion two.
Occasion two
Third episode of rape. Tuesday. Single form of penetration.
The evening before, after the second episode of rape:
a.He strangled her. She was scared he would kill her. Whilst doing this he kept repeating “do you want to die?”.
b.He told her from now on she could not have anything including money and a phone.
Earlier in the morning before the rape, she was handcuffed.
Shortly before the rape, an alarm went off when she tried to leave the bedroom.
During the rape, she did not dare to say anything for fear of being bashed or killed and she felt she was in a vegetative state.
Occasion three
Fourth episode of rape. Tuesday. Victim also orally and anally penetrated.
Victim in the same physical condition as described for Charge 2, occasions three/four.
Occurred with the same accompanying violence, as described for Charge 2, occasions three/four.
Occasion four
Fifth episode of rape. Wednesday. Victim also orally and anally penetrated.
Occurred in the same circumstances, and with the victim in the same physical condition, as described for Charge 2, occasion five.
Victim subjected to humiliating and degrading treatment. Offender used a sex toy, over his own penis, to rape her.
Occasion five
Eighth episode of rape. Thursday. Single form of penetration.
She had no strength to resist.
Victim had not eaten anything whilst at the offender’s house.
Occasion six
Ninth episode of rape. Friday. Victim also anally penetrated.
Victim did not dare say anything.
She had been imprisoned for several days.
CHARGE 4 – ANAL RAPE
Summary:
a.Five occasions across five episodes.
b.Occurred on Monday, Tuesday, Wednesday and Friday.
Occasion one
Second episode of rape. Victim also vaginally and orally raped.
Rape occurred after removal of phone and being dragged, etc, as described above for Charge 2, occasion two.
She begged him not to anally penetrate her. He said he did not care.
Occasion two
Fourth episode of rape. Tuesday. Victim also vaginally and orally penetrated.
Victim in the same physical condition as described for Charge 2, occasions three/four.
Occurred with the same accompanying violence, as described for Charge 2, occasions three/four.
Victim begged the offender not to anally penetrate her because it had been so painful on the last occasion.
Occasion three
Fifth episode of rape. Wednesday. Victim also orally and vaginally penetrated.
Occurred in the same circumstances, and with the victim in the same physical condition, as described for Charge 2, occasion five.
Occurred despite the victim having previously begged him not to anally penetrate her (as per occasions one and two).
Occasion four
Sixth episode of rape. Wednesday. Victim also orally penetrated.
She was in the same physical and psychological condition as described for Charge 2, occasion five, except now her left eye was swollen shut.
Anal penetration caused her extreme pain.
Victim begged the offender to stop anally penetrating her.
Offender gave her a ‘choice’ of penetration, between mouth and anus. She chose oral penetration as the anal penetration caused greater pain.
Prior to then orally penetrating the victim, the offender cruelly and chillingly taunted the victim as described for Charge 2, occasion six.
Due to pain in her mouth, the victim was not able to perform continual oral sex on the offender. In frustration the offender switched back to anal penetration and then alternated between the two forms of penetration for about half an hour.
When unable to be sexually satisfied, the offender assaulted and threatened the victim as described for Charge 2, occasion six.
Occasion five
Ninth episode of rape. Friday. Victim also vaginally penetrated.
Victim did not dare say anything.
She had been imprisoned for several days.
She was injured and had been subjected to numerous serious assaults and threats.
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