DPP v Duncan (a pseudonym)
[2022] VCC 2010
her
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD DUNCAN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2022 | |
DATE OF SENTENCE: | 17 November 2022 | |
CASE MAY BE CITED AS: | DPP v Duncan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2010 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Plea of guilty – rape – common law assault – rolled-up charges – serious sexual offending – family violence – former domestic partner – degrading behaviour – history of violent offending against victim – offender diagnosed with PTSD resulting from childhood deprivation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Bugmy v. The Queen (2013) 249 CLR 571; R v. Verdins 16 VR 269; Julian Lockyer (a pseudonym) v. the Queen [2020] VSCA 321
Sentence: Total effective sentence of seven years and six months’ imprisonment, non-parole period of four years and six months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A.J. Moore | Office of Public Prosecutions Victoria |
| For the Accused | Mr V.G. Peters | McFarlane Criminal Lawyers |
HER HONOUR:
1Richard Duncan[1], you have pleaded guilty to one charge of rape contrary to s38(1) of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 25 years' imprisonment and to one charge of common law assault, the maximum penalty for which is five years' imprisonment.[2]
[1] A pseudonym.
[2]Pursuant to s 320 of the Crimes Act 1958.
2The victim of your offending is your former partner, Ms Georgina Goodwin[3], with whom you have three children. The offending occurred between 1 January 2021 and 7 February 2021 at a time you had returned to live with Ms Goodwin, following your release from prison. You were 24 years' old at the time. Ms Goodwin was
26 years' old.[3]A pseudonym.
Background to the offending
3The background and circumstances of your offending are outlined in the summary of prosecution opening dated 3 November 2022, which is the agreed basis upon which you are to be sentenced.
4
You first met Ms Goodwin when you were at school together. She was in Year 7 at that time. Your relationship commenced in 2008, when Ms Goodwin was in
Year 8. The relationship was not a stable one, but continued off and on, for a period of eight years. Between 2011 and 2015 the two of you had three children; two daughters and a son. Due to the involvement of Child Protection, the children lived with your mother.
5The two of you separated when your youngest daughter was born in August 2015. Intervention orders under the Family Violence Protection Act 2008 were made for the protection of Ms Goodwin and operated until 2017. In 2019, Ms Goodwin gave birth to a daughter, who was born to another father. At the time of your offending, Ms Goodwin lived in a house in Moe with her young daughter.
6On 21 November 2019, you were sentenced by the Magistrates' Court to a period of one year, four months' imprisonment for offending that included stalking, persistent contravention of an intervention order and unlawful assault. This offending did not relate to Ms Goodwin. You were released in October 2020.
7Following your release, you contacted Ms Goodwin asking to meet with her again. You told Ms Goodwin that you were proud of her for 'getting her life back on track' and said you wanted the same for yourself. You told Ms Goodwin that you needed help to do so and told her you wanted to get off drugs. Ms Goodwin thought you sounded well, so she agreed to meet with you.
8You visited Ms Goodwin at her house in Moe approximately one week later, and asked if you could stay with her. She agreed, allowing you to sleep on the couch. You did not recommence your relationship at this time, although the two of you did have consensual sex on one occasion.
9After living there for two weeks, it became clear that you wanted to recommence your relationship with Ms Goodwin, but that she did not. She told you this on numerous occasions. At first you accepted her position, but your behaviour towards her changed over time. You began checking her phone conversations, text messages, bank statements and Facebook account. Your behaviour became more controlling, including attempts to stop her from seeing her friends, her mother and deciding when she could go shopping.
10During this period, you began threatening her and acting aggressively, including by smashing the walls and throwing things in the house. You also began hitting Ms Goodwin. Although you are not charged with this conduct, it is the background against which your subsequent offending occurred.
11Your jealous behaviour extended to occasions where you demanded that
Ms Goodwin show you her vagina. You said that this way you could tell if she was having sex with another male. Ms Goodwin only complied because she was scared of what you might do if she refused.
Circumstances of Offending – First Incident
12The first incident of offending occurred in January 2021. Ms Goodwin was at home cleaning the house when you asked her to watch some pornography with you. When she refused, you became angry. You took her into the bedroom and placed a dog collar around her neck. Ms Goodwin began crying. It was in these circumstances that you then raped Ms Goodwin by inserting your penis in her mouth. Ms Goodwin only complied because she thought you would hurt her. This conduct is encompassed by the rolled up charge of rape, which is Charge 1.
13You then pushed Ms Goodwin off you and told her to get out of the room. She went into a spare room, where her daughter was watching a movie and she fell asleep. A short time later you went into the spare room and woke her. You still appeared angry. After you finally calmed down, you apologised to the victim.
Circumstances of Offending – Second Incident
14The second incident of offending occurred approximately one week later. On that occasion, Ms Goodwin was at home and wanted to go outside to have a cigarette. You would not allow her to do so, forcing her to smoke near the kitchen window. You appeared to her to be acting in a paranoid fashion. You then put your cigarette out by extinguishing it on the back of her neck.
15Ms Goodwin screamed in pain when you did so. You told her to 'shut up', saying that she would wake her daughter. You told her to go to into the bedroom and you followed her in there. You then hit her to the side of her head. You also poured a container of baby powder on her face. These two assaults are the subject of the rolled up charge of common law assault, which is Charge 2.
16In the bedroom, Ms Goodwin was crying on the bed. You took a dog lead and attached one end of the lead to the bedhead and placed the other end around
Ms Goodwin’s neck. You removed your pants and turned the victim on her stomach. You then penetrated her vagina with your penis, without her consent. You told Ms Goodwin to 'clean herself up' afterwards. This conduct is also encompassed by the rolled up charge of rape, which is Charge 1.17When Ms Goodwin woke the next morning, you told her not to 'lag on me or go to the cops'. You were crying and apologised for hurting her. On 16 February 2021, you left a voice message for her, in which you again apologised for everything you had done, stating 'I am truly sorry…please don't take it out on [anyone] else. I'm cutting tonight, like and that's my word. Bye'.[4]
[4]Exhibit A – Summary of Prosecution Opening dated 3 November 2022, at [21] message on Facebook account.
18In early February 2021, you attended the house of a friend of Ms Goodwin. You were drug affected at the time. You told her friend that you had fought with the victim and asked her to talk to Ms Goodwin. You then left. When her friend spoke with her, Ms Goodwin said that you been very controlling and had physically and sexually assaulted her. She told her friend that you had put a cigarette out on her neck.
19On 19 February 2021, Ms Goodwin met with Rachel Ormond[5], a team leader of the Kinship Program and Victorian Aboriginal Care Agency, and told her that you had raped her and extinguished a cigarette on her neck. Ms Ormond took photos of the burn mark to her neck, a copy of which I have viewed.
[5] A pseudonym.
20The matter was reported to police on 22 February 2021 and Ms Goodwin made a statement to police the following day.
21You were arrested in Morwell and interviewed by police on 15 March 2021. In your police interview you stated that your sexual intercourse with Ms Goodwin was 'a bit over the top', that you 'wouldn't have just normal sex' and 'always had to spice things up' but denied ever raping Ms Goodwin.
Offence Gravity and Criminal Culpability
22I turn now to discuss the nature and objective gravity of your offending.
23The crime of rape is an inherently serious offence, as can be gauged by the maximum penalty of 25 years' imprisonment fixed by Parliament. In this case, although one maximum penalty applies, it is necessary to have regard to the fact that this is a rolled-up charge encompassing two separate instances of rape. The sentence I impose on this charge must reflect the overall criminality of your sexual offending against the victim.
24There are a number of features that elevate the seriousness of your sexual offending. Both acts of rape were preceded by placing a dog collar around the victim's neck, and on the second occasion, by also attaching one end of the lead to the bedhead. This can only have increased the victim's sense of fear and helplessness. The rapes occurred in degrading and humiliating circumstances. Non-consensual sexual penetration is an inherently violent act, aggravated here by having effectively restrained the victim with the dog collar. The second incident of rape was immediately preceded by the assaults, themselves very serious, elevating the victim's vulnerability. You had also poured baby powder over her face in a further act of degradation.
25It is an additional aggravating feature that the sexual offending occurred in the victim's home, where she was entitled to feel safe, and where she had offered you refuge and support following your release from prison. Your offending breached the trust she had extended to you by allowing you back into her home.
26Finally, it is significant that the sexual offending occurred in the context of a former domestic relationship with the victim, the mother of your children. This too elevates the seriousness of your offending. What appears to have motivated your offending was a sense of jealousy and anger directed at your former partner, culminating in your controlling behaviour, including repeated acts of physical and sexual violence. You treated the victim with complete disregard for her dignity and autonomy. You then pleaded with her not to complain to the police about your offending.
27The act of extinguishing your cigarette into the victim's neck was a particularly egregious example of family violence. It was a shocking, and undoubtedly painful, thing to do. The assault then continued with you hitting the victim to the head. This is a serious example of a common law assault. I again have regard to the fact this is a rolled-up charge encompassing both acts, even though the one maximum penalty applies.
28The significant impact of your offending is clearly reflected in Ms Goodwin’s victim impact statement dated 3 November 2022. She speaks of ongoing distress and an enduring fear for her safety as a result of your crimes. She says she is unable to sleep, constantly checks her security system, and now utilises a distress watch, that she keeps on her daily. She has been diagnosed with PTSD, major depression and anxiety, for which she takes medication. She says that she now rarely leaves home and finds it difficult to be out in the community. As a result, she describes feeling 'scared and trapped'. She says the scar to her neck caused by the cigarette burn is a constant reminder of what you did to her. I have taken the impact of your offending on Ms Goodwin into account as one of the factors relevant to the sentence I impose.
29This is a serious example of the offence of rape, which is itself a very serious offence, and of common law assault. That they occurred in the context of a former intimate relationship with the mother of your children, who had offered you a place in her home, elevates the gravity of your offending. Your moral culpability for your offending is significant, but is also informed by your personal circumstances to which I now turn.
Personal Circumstances
30You were born in May 1996 and are now 26 years old. You are an indigenous man descended from the Palawa people from Tasmania.
31
Much of your background is drawn from earlier psychological assessments undertaken by Dr Aaron Cunningham and Mr David Ball. Dr Cunningham's psychological reports dated 21 October 2014 and 4 May 2021, and Mr Ball's report dated 21 October 2019 were tendered on your plea before me on
4 November 2022. No additional or updated material was provided.
32Sadly, your formative years were marked by trauma and dysfunction. You are the youngest of two brothers. You were raised by your mother in Morwell. You describe your mother as 'a good person who doesn't drink or do drugs'. You report that you never really knew your biological father.
33When you were aged between six and ten years, you lived with your mother's alcoholic partner, who was physically violent in the home. You were also exposed to his drug abuse. You report living in in a housing commission area where you witnessed much violence and drug addiction. At the age of 11, your mother began a relationship with your current stepfather who you describe as a good and stable influence. Your stepfather passed away in 2017. You continue to have a close relationship with your older brother.
34You attended a number of primary schools, but struggled to listen and concentrate. You left secondary college during Year 7. You completed a pre-apprenticeship in bricklaying at Yallourn and Malmsbury TAFE, but have no other formal schooling or qualifications. Mr Ball says you are 'functionally illiterate'.[6]
[6]Exhibit 3, Psychological report of Mr David Ball dated 21 October 2019 at page 3.
35When you were aged 14, you were told that your biological father had passed away. You and your brother travelled to Queensland for his funeral and it was there that you were first introduced to drugs by other family members. Whilst living with an uncle in Queensland you report that he sexually molested and abused both you and your brother, and that he would try to give you 'harder drugs' so that you would engage in sexual acts with him.
36You left Queensland to escape your uncle and report that you began self-harming at this time.
37When you returned to Victoria, you did not return to live with your mother. You told Dr Cunningham you did not want to show her 'how [you] had deteriorated'.[7] From this point, you lived with friends or on the streets.
[7]Exhibit 1 – Report of Dr Aaron Cunningham dated 21 October 2014, at page 2.
38
You have a significant history of poly-drug and alcohol abuse. You began by experimenting with cannabis at the age of 12, you progressed to alcohol, amphetamine and ecstasy from the age of 15. By the age of 17, you were regularly using the drug 'ice' daily. You were also drinking up to a slab of beer each day. You have abused prescription drugs, Xanax and Lyrica in the past. You told
Mr Ball that your abuse of drugs had 'ruined' your life, but that you have 'no other coping mechanisms' to deal with your traumatic upbringing.[8]
[8]Exhibit 3 – ibid, page
439Your relationship with Ms Goodwin has been your only significant intimate relationship. You told Dr Cunningham that it was a good relationship at first, but that it 'went downhill' due to mutual drug use, including methylamphetamine abuse.
40As a result of this offending, the children now reside with the victim's mother. You also have two other children born to different mothers, but with whom you have no contact.
41You have a limited employment history. You worked for a period of four months doing roofing with Ms Goodwin’s uncle and have worked as a carpet layer, also for a period of four months. You have done some work as a furniture removalist, but have spent the majority of your adult years on a Newstart Allowance.
42At the age of 26, you have a reasonably lengthy prior criminal history that dates back to your first court appearance in June 2013 for criminal damage. Much of your prior criminal history relates to offending against Ms Goodwin and is of relevance to your sentence for this offending.
· On 22 October 2014, you were sentenced to a period of 88 days’ imprisonment followed by an 18-month Community Correction Order ('CCO') for offending that included two charges of persistent contravention of a family violence intervention order, intentionally causing injury and recklessly causing injury, contravening a family violence safety notice and two charges of contravening a conduct condition of bail;
· On 6 October 2015, you were sentenced to three months' imprisonment followed by a 12-month CCO for offending that included four charges of contravening a family violence intervention order and a charge of persistent contravention of a family violence intervention order;
· On 2 September 2016 you were sentenced for contravening both CCOs and sentenced to 12 months' imprisonment for further offending including persistent contravention of a family violence intervention order, two charges of recklessly causing injury, a threat to inflict serious injury and criminal damage; and
· On 1 June 2018 you were sentenced to a further 12-month CCO for two charges of contravening a family violence intervention order, that was also breached and you were resentenced on 27 August 2018.
43Your prior criminal history reveals a concerning pattern of violent offending against Ms Goodwin over the course of your relationship. Your offending was not deterred by the existence of a family violence intervention order. Whilst you are not to be punished twice for these previous matters and they do not increase the gravity of this offending, your prior criminal history is highly relevant to my assessment of your future prospects of rehabilitation and the need for the sentence to deter you from future offending for Ms Goodwin’s protection and safety. That said, it is notable that you have no prior criminal history for sexual offending of any kind. I return to my assessment of your prospects of rehabilitation later in my reasons for sentence.
Matters Relevant in Mitigation
44I now turn to discuss the matters raised on your behalf in mitigation of your sentence.
45First and foremost is your plea of guilty. Although this was not an early plea, your plea has saved the victim the trauma associated with having to re-live these events by giving evidence, and has saved the court and the community the time and expense associated with a trial. Your plea signifies your acknowledgment of responsibility for your offending.
46There is significant utility in your plea, more particularly at this time given the delays to trials occasioned in the wake of the COVID-19 pandemic. You are entitled to, and will receive, a significant sentencing discount given your guilty plea to the charges.
47I consider the question of remorse for your conduct to be more complicated. It is true that you apologised to the victim on both occasions after your offending. On the first occasion, you apologised after you had calmed down. It did not however prevent you offending a week later. After the serious offending on the second occasion, you broke down crying and apologised to the victim, but only after asking her not to 'lag on' you or go to the police.
48I accept however, that the voice message you sent the victim on 16 February 2021 included an apology 'for everything [you] had done' and that you ceased all contact with the victim. Whilst I give little weight to your earlier apologies, I accept that by mid-February 2021, you expressed genuine remorse for your conduct and acted upon it by ceasing all contact with the victim.
49The second matter relevant in mitigation relates to the trauma and disadvantage you suffered in your early years. Your formative years were marked by exposure to violence and sexual abuse at the hands of a family member resulting in dislocation, periods of homelessness, and alcohol and drug abuse. It is notable that you were introduced to drugs by your uncle, at a very young age. As the High Court articulated in Bugmy v The Queen, a background of such significant disadvantage is relevant in mitigation. The High Court stated: [9]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.
[9](2013) 249 CLR 571 at [44] “Bugmy”.
50In this case, your childhood deprivation operates in mitigation of your sentence and lowers your moral culpability for your offending. Your culpability cannot be equated to that of a person whose formative years did not have these disadvantages. However, as the High Court observed in Bugmy:[10]
An offender's childhood exposure to extreme violence and alcohol abuse may explain an offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[10]Bugmy at [44].
51These comments have equal force here. Particularly at times when you are drug and alcohol affected, your inability to control your anger and your violent response (including sexual violence) to feelings of frustration or rejection, means that the protection of the community remains an important consideration in your sentence.
52
Although the psychological material tendered on you plea pre-dates this offending, the assessments of Dr Cunningham and Mr Ball are also relevant to your sentence. Dr Cunningham diagnosed you with PTSD arising from your history of sexual abuse and exposure to violence. In his report dated 21 October 2014,
Dr Cunningham stated:[11]
He presented with negative alterations in cognitions and mood in the form of emotional detachment, feelings of worthlessness and guilt and thoughts of death. He reported marked alterations in arousal in the form of hypervigilance, sleep disturbance, irritability and outbursts of anger, difficulty concentrating and reckless and self-destructive behaviour.
[11]Op Cit at page 3.
53In 2014, Dr Cunningham assessed you as a moderate risk of future violent offending.
54In his subsequent report dated 4 May 2021, Dr Cunningham states that you continued to present with PTSD, in addition to episodes he opined were 'consistent with Substance-Induced Psychotic Disorder in the community'. At the time of that assessment, Dr Cunningham states you were still engaged in a 'dysfunctional and violent relationship with your ex-partner and were abusing significant amounts of drugs'. He reported that you had not engaged with drug and alcohol services and that your PTSD went untreated.
55It was apparent to Dr Cunningham at that time that your 'drug abuse and relationship with your ex-partner continue to present significant risk factors', stating that you were prone 'to paranoia, overperceiving threat and overreacting'. He states that your drug abuse aggravated your symptoms of PTSD.
56Mr Ball expressed the opinion that you present with significant antisocial personality features and that you are mistrustful and suspicious of others. Mr Ball assessed you as meeting the diagnostic criteria for a diagnosed ‘antisocial personality disorder’, in addition to suffering from episodes of anxiety and depression.
57Mr Peters, appearing on your behalf, did not submit that the psychological material enlivened any of the Verdins[12] principles to reduce your moral culpability for this offending. In the absence of expert evidence that supports any causal connection between your PTSD, or antisocial personality disorder, and your offending against Ms Goodwin, I am unable to find that these mental health conditions reduce your moral culpability for this offending or the need for the sentence I impose to operate as a deterrent to others.
[12]R v. Verdins (2007) 16 VR 269.
58
At present I am unable to conclude that your prospects of rehabilitation are favourable. Much will depend on your ability to effectively engage in long-term treatment for your drug and alcohol dependency and abuse, and psychological treatment addressing your past trauma and resulting PTSD. Given the nature of your offending, it is also appropriate that you be assessed for specialist
sex-offender treatment as well.
59
My assessment of your future prospects is informed by your prior criminal history, your history of significant drug and alcohol abuse, the risk assessment of
Dr Cunningham, and significantly, your lack of engagement in drug and alcohol treatment despite being afforded opportunities to do so in the past. My guarded assessment of your future prospects means that the sentence I impose must operate as a specific deterrent to you.
60There are however, some positive indications for your future. You retain the support of your mother who has demonstrated her commitment to you by attending court hearings. You have accommodation available to you upon your release from custody with family members.
61Since being in custody, you have demonstrated a motivation to engage in programs made available to you, including a six hour program to address depression and self-harm and an introductory alcohol and drug dependency course. Mr Peters states you have also engaged in employment programs whilst in custody, including welding work, furniture making and bricklaying. You have also been connected to an Aboriginal art program. These are positive steps that are to your credit.
62You are still a young man, and a sentence that fosters and promotes your future rehabilitation is still a significant consideration and through which community protection may be achieved. I have taken this into account in determining an appropriate non-parole period.
63You have now been held in custody for a period of close to 20 months. During this period you also served a five month sentence for unrelated offending.
64
There have been a number of factors that have made your time in custody more difficult. You were charged on 15 March 2021 and remanded in custody. However, a committal hearing did not proceed in the Magistrates' Court until
25 January 2022. This delay was undoubtedly related to the impact of COVID-19. However this delay would have been a cause of additional anxiety and uncertainty for you.
65You have been remanded during the height of the COVID-19 pandemic. To respond to the risks posed by the virus, various restrictions were imposed in prisons in Victoria, including increased periods in lockdown, a suspension of personal visits, and restrictions on vocational and rehabilitation programs. Due to distance, your mother has been unable to visit you in person. This will have made your time in custody a more difficult and isolating experience.
66I have also had regard to the opinion expressed by Dr Cunningham in his 2014 report regarding the impact of your PTSD on your experience of prison. He states:
Mr Duncan would benefit from a disposition that considered his Post Traumatic Stress Disorder. In my opinion, exposure to further threat or danger in prison would aggravate Mr Duncan’s symptoms of hypervigilance.
67Although this report was written some time ago, it is not disputed that you continue to suffer from PTSD. I accept that due to your diagnosed PTSD, you have certain attributes which would make you more vulnerable in a prison setting. Accordingly, limb 5 of the authority in Verdins is enlivened and also operates in mitigation of your sentence.
Other Sentencing Considerations
68I now turn to discuss other relevant sentencing considerations.
69I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act. In a case such as this, the most significant sentencing considerations are those of general deterrence, just punishment and denunciation. In sentencing you, I must deter others from engaging in degrading acts of sexual violence against their former intimate partners and denounce your serious criminal conduct.
70The offence of rape is a 'standard sentence offence'. As the offence was committed after 1 February 2018, the standard sentence scheme applies to the sentence I am to impose on the charge of rape. The applicable standard sentence is 10 years' imprisonment.
71The scheme is set out in s5A and s5B of the Sentencing Act. The scheme requires me to take the standard sentence into account as one of the factors relevant to sentencing. However, as stated by the Court of Appeal in Brown v the Queen,[13] the standard sentence is a legislative guidepost only, and does not affect the established 'instinctive synthesis' approach to sentencing.
[13][2019] VSCA 286 at [4].
72The only previous sentences to which I may have regard when considering current sentencing practices are those that have been imposed under the standard sentence scheme for the offence of rape.[14] Your counsel referred me to a number of cases where the Court of Appeal considered sentences imposed for the offence of rape subsequent to the introduction of the standard sentence scheme. I have considered these cases which give some broad guidance but note that the factual circumstances in each case differs from those that present in your case.
[14]Section 5B(2)(b) of the Sentencing Act 1991.
73In particular, I have had regard to the sentence of eight years, six months' imprisonment imposed by the Court of Appeal in Lockyer[15] on each of two charges of rape following a trial. Here, as stated, your plea of guilty attracts a significant sentencing discount. In the case of Lockyer however, the accused had no prior criminal convictions despite a childhood marked by significant disadvantage and reasonable prospects of rehabilitation and family support.[16] The Court of Appeal considered these to be 'powerful mitigating factors' that operated to reduce the sentence in that case.
[15]Julian Lockyer (a pseudonym) v. The Queen [2020] VSCA 321.
[16]Lockyer at [65].
74As always, each case turns on its own facts and circumstances. As was made clear in the case of Dalgliesh, current sentencing practices are only one of a number of factors to which I must have regard in sentencing you.[17]
[17]DPP v Dalgliesh (Pseudonym) [2017] HCA 41, (2017) 262 CLR 428.
75I have had regard to the standard sentence of 10 years as one of the factors relevant in sentencing you on the offence of rape. The standard sentence is the period specified by the Sentencing Act that is the appropriate sentence for offences in the mid-range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offence. It is a legislated guidepost, no more.
76The instinctive synthesis involved in sentencing still requires a balancing of many factors including the nature and objective seriousness of the offending, your moral culpability, as well as your personal circumstances and the matters to which I have referred in mitigation of sentence. This is a grave example of the offence of rape, and as stated it is relevant to my sentence to have regard to the fact the charge reflects two instances of offending against the one victim, both violent and degrading, that were distinct episodes separated by a week.
77Against this, you have pleaded guilty, demonstrated remorse for your conduct and continue to have family support. Significantly, as in Lockyer, the application of the principles in Bugmy must also be given weight in mitigation and your relative youth makes your future rehabilitation an important consideration.
78The sentence I have imposed on the charge of rape falls below the standard sentence. In imposing this sentence, I have given weight to each of the matters relied on in mitigation of your sentence, most particularly, your guilty plea, your childhood marked by significant disadvantage, the burden of your imprisonment and, to a lesser degree, your relative youth.
79In considering the amount of cumulation to be ordered between the two charges, I have assessed the extent to which the incidents of assault added to the total criminality of your conduct. As stated, your offending giving rise to the rolled up charge of assault was particularly egregious. However, I accept that the sentencing principle of totality means that a significant degree of concurrency is appropriate.
Sentence
80Taking into account the factors to which I have referred, and guided by the standard sentence and maximum penalty for the offence of rape, I sentence you as follows:
81
On Charge 1, rolled up charge of rape, you are convicted and sentenced to
seven years' imprisonment. This is the base sentence.
82On Charge 2, rolled up charge of common law assault, you are convicted and sentenced to 20 months' imprisonment.
83I order that six months of the sentence imposed on Charge 2 be served cumulatively upon Charge 1.
84
This gives a total effective sentence of seven years, six months' imprisonment. Pursuant to s11A of the Sentencing Act 1991, I fix a non-parole period of
four years, six months' imprisonment.
85Pursuant to s18 of the Sentencing Act 1991, I declare 459 days of pre-sentence detention be reckoned as already served under this sentence.
86Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of 10 years' imprisonment with a non-parole period of seven years.
87Following your plea hearing, it was accepted by the prosecution that your offending did not attract the mandatory registration provisions of the Sex Offenders Registration Act 2004. No application for discretionary registration was made on behalf of the prosecution. Accordingly, I make no order under that Act.
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