DPP v Elwood (a pseudonym)

[2019] VCC 128

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON ELWOOD (a Pseudonym) 
BRODY PERRY (a Pseudonym)

‑‑‑

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2018
DATE OF SENTENCE:	1 February 2019
CASE MAY BE CITED AS:	DPP v Elwood (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 128

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Rape – rape in company – offending filmed – possess drug of dependence – related summary offence commit indictable offence on bail – standard sentence offence – term of imprisonment – non-parole period.

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R Hooper	Office of Public Prosecutions
For Accused Elwood	Ms E Clark	James Dowsley and Associates
For Accused Perry	Ms F Franjic Ms D Kemper at sentence	Go To Court Lawyers

1HIS HONOUR:  Clinton Elwood[1], you have pleaded guilty to three charges of rape and two charges of a possessing drug of dependence on indictment No.C1811886.  You have also pleaded guilty to a relevant summary offence of committing an offence whilst on bail. 

[1] A pseudonym name

2Brody Perry[2], you have pleaded guilty to two charges of rape, also on indictment No.C1811886.  The maximum term of imprisonment for rape is 25 years' imprisonment.  The maximum term of imprisonment for possessing a drug of dependence is one year's imprisonment if the court is satisfied that offence was not committed for a purpose related to trafficking, or otherwise five years' imprisonment.  In respect of Charge 6, in your case Mr Elwood, I am so satisfied.  In respect of Charge 7, I am not so satisfied. Accordingly the relevant maximum penalties apply.

[2] A pseudonym name

3The circumstances of your offending, is set out in the prosecution opening which was Exhibit A on your pleas.  Exhibit A forms part of the reasons for this sentence.

4In brief, the victim in this matter, who I will refer to as BD, was 24 years old at the time of the offending and had been in a relationship with you, Mr Elwood, for approximately five years.

5You and BD had previously cohabited for a period in your family home.  In late 2016 you both moved out into your own apartment.  This arrangement lasted until you separated in early 2017, a period of around three months.  At separation, both you, Mr Elwood, and the victim returned to live with your respective parents.

6Towards the end of 2017, you started to spend time together again as friends.  In February 2018, you and BD resumed your relationship.  Around this time, BD met you, Mr Perry, through your close friendship with Mr Elwood.  Ultimately the three of you became friends, and commenced going to nightclubs in the city on the weekends together.  Whilst at these night clubs, you each took the drug GHB and occasionally also took ecstasy and ice.  After going out, the three of you would normally sleep at either Mr Elwood's or Mr Perry' house in the south-eastern suburbs in Melbourne.

7Upon recommencing the relationship, the victim noticed that you, Mr Elwood, had become paranoid about her having feelings for other men or being disloyal to you.  Apparently you also raised the prospect of having a threesome with one of your friends, and you suggested Mr Perry as a candidate.  This caused conflict in the relationship as BD did not want to engage in a threesome.

8On 20 May 2018 BD was spending the night with you, Mr Elwood, in your bungalow at your parents' house as she did not have work the next morning.  At around 3 am that night, she looked through your phone.  When doing so, she observed videos of her while she was asleep and not wearing any underwear.  In these videos she could see her vagina and also the hands of both you, Mr Elwood, and you, Mr Perry.  She could identify her legs and both of you by your distinctive tattoos.

9The victim sent these videos to her own phone and caught an Uber ride to her home.  Once home, she telephoned close friends and family and told them what had happened.  A friend drove her to her mother's house outside of Melbourne, where she then went with her mother to the local police station where she gave her phone to police.

10One of the videos depicts BD on a bed in your bungalow, Mr Elwood, dressed only in her orange underwear.  You, Mr Elwood, can be seen spreading the victim's legs and you can be heard whispering to Mr Perry, "Shut the door.  BD does not wake up," and, "Do you know how many times I've done this?"  You can also be heard whispering, "BD has the best pussy."  During this video, you, Mr Elwood, can be seen penetrating the victim's vagina with your finger.  The victim appears to be asleep during this video, and was completely nonresponsive.  This incident is the subject of Charges 3 and 4.  Your criminal liability for Charge 3, Mr Perry, arises from your complicity in Mr Elwood's penetration of the victim's vagina.

11Another video depicts you, Mr Perry, penetrating the victim's vagina with your finger while Mr Elwood assists by moving her underwear to one side.  Later in this video, you, Mr Elwood, can be seen to place your penis on the victim's face.  Again the victim appears to be asleep and was completely nonresponsive.  This incident is the subject of Charges 1 and 2.  Your criminal liability for Charge 2, Mr Elwood, arises from your complicity in Mr Perry' penetration of the victim.

12Another video shows you, Mr Elwood, with the victim in the bungalow.  You can be seen to lubricate a cucumber and then penetrate the victim's vagina with it.  Again the victim is completely nonresponsive.  That conduct represents Charge 5.

13After viewing these videos, the victim recalled waking up a few weeks earlier, after taking GHB with both of you, completely naked, with her underwear pulled down and her being only partially covered by a blanket.  She was angry with you, Mr Elwood, as she was concerned about being exposed while Mr Perry was present.  After Mr Perry left, you, Mr Elwood, told the victim that she had stripped off in her sleep, started touching herself and that both you and Mr Perry had fingered her.  The victim became upset at this and you then told her that you were joking.  The victim recalled that she was wearing the same orange underwear that night as depicted in one of the videos.

14On 21 May 2018, you, Mr Elwood, and the victim exchanged text messages in which you told BD that you had touched her while she was asleep on at least four other occasions, but only once when Mr Perry was present.  You told the victim that you were sorry and pleaded with her not to report the matter to the police.

15On 25 May 2018, you, Mr Elwood, were arrested.  At the time of your arrest, police searched your car and located methylamphetamine (approximately 0.3 grams), 1,4-Butanediol (3.2 grams), and cannabis (30.9 grams).  This constitutes Charge 6, possession of a drug of dependence, and it was not alleged by the prosecution that this possession was for a purpose connected with trafficking.  During a subsequent search at your address, police located 5 grams of cannabis.  Also located was a Mount Franklin bottle, which was later confirmed to contain 692 grams approximately of 1,4-Butanediol.  This constitutes Charge 7, possession of a drug of dependence.  And it was contended by the prosecution that this possession was for a purpose related to trafficking.

16Related summary Charge 9, committing an indictable offence whilst on bail, relates to you, Mr Elwood, having been on bail, having been charged with possession of methylamphetamine and unlicensed driving on 28 October 2017.

17When interviewed at the local police station, you, Mr Elwood, made admissions in relation to the alleged offending.  However, you stated that you had previously told the victim that you penetrated her with a cucumber and that she thought it was funny.  You also claimed that prior to filming Mr Perry digitally penetrating the victim while she was asleep, that she had been kissing and masturbating Mr Perry.  You said that in relation to this incident you had placed your penis on the victim's head, but you did not believe that you had digitally penetrated her.

18You also claimed that the victim had previously been naked in front of Mr Perry on numerous occasions, and that you had a video of her dancing around naked for the two of you on your phone.  A search of your phone failed to find any such video.

19You said that you knew that the victim did not like to be filmed, and that you knew filming Mr Perry digitally penetrate her was wrong.

20In relation to Charge 7, you told police that you had purchased 600 mls of GHB around three weeks ago as it was cheaper to buy it that way.  You said that you intended to use it yourself with the victim and your sister's boyfriend. 

21You, Mr Perry, were arrested on 28 May 2018.  You were taken to the local police station to be interviewed.  You were not interviewed as you did not wish to be interviewed without a solicitor present.  A solicitor could not be organised to attend, so you were not interviewed and the allegations were not put.  You did consent to taking of some photographs of your tattoos and providing your fingerprints. 

Gravity of Offence and Victim Impact Statement:

22Rape is a most serious offence.  The maximum penalty is 25 years' imprisonment.  It is a standard sentence offence.  The standard sentence for rape is designated as ten years.  The standard sentence is the sentence for the offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. This is another guidepost to steer by, and is a factor I have taken into account in arriving at sentence. 

23Rape involves the gross violation of the person physically, psychologically and emotionally.  The depths of the injury and harm caused to victims is well established.  It is an offence that contains a wide range of criminality.  In this case your victim was known to both of you.  She trusted both of you, and enjoyed your company.  She was in a relationship with you, Mr Elwood.  Her despair, pain, shock and disgust at the violation, once she understood what had taken place, is apparent from the prosecution opening, and in particular her own words in her victim impact statement.

24In her victim impact statement, she describes the impact of your crimes on her life and I have taken this into account.  She also states,

25

26"Most would expect me to be enraged and hateful.  That's not how I feel at all.  I loved these people.  My partner of five years, accompanied by our friend, took a turn in life and unfortunately I became a victim of this crime.  I feel broken hearted after losing my partner, lonely and unable to live life to the best of my ability.  I've always been a very confident, vibrant and hardworking woman with a passion for travel.  My body has been taken from me, and in reality that's exactly how I feel.  I hate being a victim, and as much as I try not to be I know that's what I am in everyone's eyes and I feel like this has taken away my identity.  Despite all of the above, I have nothing but empathy in my heart for both Clinton and Brody because although they have committed such a horrible act, I believe these men were good people once.  However due to life choices, I also believe they have changed and become a danger to the people around them.  Looking back now I wish I'd picked up on the signs.  Anything earlier that could have told me I wasn't safe with these people, but I trusted them.  I felt safe with my partner and our best friend.  We did everything together and we had what I thought was a special friendship that would last forever.  I still can't understand why this has happened and I suppose I never will.  My life has been changed forever and so have theirs."

27These sentiments expressed by BD are a poignant expression of the savage betrayal of trust perpetrated by each of you, and her pain and the psychological and emotional scars caused by your crimes.  The fact that she was criminally violated in a degrading way and while she was at her most vulnerable, asleep and unaware of what was taking place, by two who were close to her lies at the heart of the criminality in your cases.  The most serious aspects of the offending can be identified as the vulnerability of BD and the state she was in, the gross breach of trust, the fact the offending was in company, and the fact the offending was filmed.  Whilst there is utility in identifying these serious aspects, it is the combination of all of the circumstances, including the history between the three of you, no doubt the disinhibiting effects of continued drug use, and all of the circumstances that gives the offending its character.

28The breach of trust is greater in your case, Mr Elwood.  As BD has stated, you were her partner of five years, and she trusted you, she loved you.  The facts of the matter as opened, and as accepted by each of you, portray you, Mr Elwood, as the enabler or facilitator of the offending.  This is different from considering you to be the instigator or the architect of the offending.  I was not asked to make such a finding and I do not do so.

29Your offending, Mr Perry, also involves a breach of trust.  You were a trusted friend.

30I accept that each of you are genuinely remorseful for your conduct.  I accept that each of you understand the impact of your crimes on your victim and have appropriate empathy and remorse.  It is apparent from the facts of the matter that each of you, to varying degrees perhaps, understood the seriousness of your conduct as soon as it was brought to light.

31In your case, Mr Perry, the denunciation of your crimes and the dismay at your having committed them was expressed in an honest and authentic way by your mother and stepmother in the letters I received on your behalf.  I accept that you accept their sentiments, and that you also feel great shame at having acted in the way you did.  I regard the insight you have in this regard as a positive for your prospects of rehabilitation. 

32In your case, Mr Elwood, the enormity and impact of your crimes was not as apparent to you it would seem when the matter first came to light.  You also sought to evade and minimise responsibility for your crimes somewhat when interviewed by police.  Your longstanding diagnosis of autism spectrum disorder, and the particular features of the condition in your case, go a long way to explaining your responses at these stages.  I am satisfied that you have considerable insight now into your offending and its impact and as I have said you are genuinely remorseful for it and ashamed.

Personal Circumstances: Perry

33I now turn to your personal circumstances, Mr Perry.  You are 28 years of age.  You were 27 when you committed these offences.  You are the eldest of two boys born to your parents.  Your brother is four years younger than you.  I have received a letter in support of you from your brother.  Your childhood was marred by significant family violence perpetrated by your father.  Your father abused alcohol.  You, your brother, and your mother were all subjected to frequent physical, verbal and emotional violence.

34The nature and extent of the family violence is described in detail in the letter from your mother.  I accept that detail.  Your parents separated when you were 11 years old.  Your mother left your father due to his violent and unpredictable behaviour.  After your parents' separation, there was a period of disruption for you during which you spent periods of time living with each parent.  You attended St Leonard's College in Brighton for four years until Year 8.  During Year 8, your father removed you from that school and enrolled you in a state school.

35Your mother attributes the abrupt change as having a particularly destabilising effect upon you.  You experienced behavioural problems during this time and your relationship with your mother deteriorated to the point where you ceased having contact with her for a period from around the age of 15.  This continued for approximately two years.  During this time you lived with your father.  Your father's abusive behaviour continued, and by the end of that two year period your relationship with your father had broken down as a result of the increasing conflict.

36You left your father's house at the age of 18 and effectively became homeless.  You stayed between friends' houses and lived in a friend's car for a period of time.  Without appropriate parental supervision or guidance, your behaviour deteriorated.  Drinking escalated and you would frequently binge drink with friends.  You started using cannabis.  Cannabis use escalated to problem levels.  You did not attend school, nor did you engage in gainful employment during this period.  You reconnected with your mother in 2007 when you were 17 years old.  Your mother described you as having been in a very bad way.

37You were drug addicted and in a fragile state of mental health.  You were stable for a period of time, during which you were living at your mother's and commencing a motor cycle mechanic apprenticeship.  However you succumbed again to addiction and returned to a transient lifestyle.  When you were 18, your then girlfriend fell pregnant.  Your son was born on 11 December 2008.  The relationship ended shortly after your son’s birth.  I was told, and I accept, that in your early 20s you set upon improving yourself earnestly.

38You significantly reduced your alcohol and drug use. You found rewarding and gainful employment in rendering, and you worked faithfully at repairing your relationship with your mother.  You established a new social circle and worked hard on securing access to your son.  With the financial and emotional support of your mother, you secured family law orders in 2014 granting you shared custody of your son.  It is significant you have had no contact with your father since you with 16.

39You have a criminal history dating back to 2009, however for the most part these matters appear to be dishonesty matters relating to your years of delinquency and drug addiction, driving matters and some instances of contravening an intervention order, on which I was addressed by your Counsel at your plea.  There are no matters relating to sexual offending.  In 2016, at the age of 26, you established your own rendering company.  You commenced that business with high hopes and were making good progress in it.  The business has not traded, however, since you were remanded in custody.

40I accept that you are a good father to your son.  I accept that you have made significant and real change from the lifestyle and behaviours of your late teenage years and early 20s, and made that change in your mid-20s and that this is to your great credit as your childhood and in particular your teenage years were accompanied by a level of dysfunction which was to a significant extent not of your own making.

41The reference material tendered on your behalf from your mother, your stepmother, your brother and your maternal grandmother each note your reformation and positive output prior to the offending, and lament that the significant progress you had made has been marred by the crimes you committed.  Such crimes being wholly out of character, although I note one cannot overlook the role that the consumption of illicit substances no doubt played in each of your offending. 

42I regard the efforts you made, Mr Perry, to establish a business and a life with your son against the background of the dysfunction of your younger years, as a positive indicator of reasonable to good prospects of rehabilitation in your case.

43You are currently remanded at Ravenhall Correctional Centre.  You have had regular visits from your mother, maternal grandmother, brother, paternal grandfather and several friends.  You have completed several self-improvement courses, and are undertaking further courses.  You work in a trusted maintenance position around the prison.

44It was submitted on your behalf by your counsel, Ms Franjic, that the circumstances of your offending were properly characterised as being at the lower end of objective seriousness.  In support of this proposition Ms Franjic referred me to a number of cases that have assisted me in identifying where your offending sits in the range of objective seriousness, and these cases were set out in the text and footnotes of Ms Franjic's defence outline, which was Exhibit 1M at paragraphs 30 to 38.

45Ms Franjic placed particular emphasis on the nature of the offending, its brief duration and the fact that in your case it arises out of a single episode.  Whilst acknowledging the serious aspects of the offence, including the fact it was committed in company, and the vulnerability of the victim, Ms Franjic also distinguished your case from more serious cases on the basis of an absence of factors such as use of force, use of a weapon, premeditation, sustained attack, injuries and so on.

46In addition to her submission that the offending should be regarded as lower end, your counsel relied upon:

(i)Your plea, submitting an attractive mitigation for its utilitarian value, and as a reflection of your contrition

(ii)Your remorse

(iii)The significant ongoing family and social support you enjoy

(iv)The anguish you are experiencing, and will continue to experience due to the separation from your son whilst in custody

(v)Your impressive work history

(vi)The submission that your offending is out of character, which I accept

(vii)Your prior convictions are of limited relevance, and save for 21 days for driving matters in 2016, this sentence will represent your first experience of a term of imprisonment of considerable length.

(viii)Finally, she relied upon your prospects of rehabilitation as being very positive.

47Save for qualifying my acceptance of your prospects of rehabilitation as good, rather than very positive, I accept the matters relied upon in mitigation.

Personal Circumstances: Elwood

48I now turn to your personal circumstances, Mr Elwood. You were born on 21 February 1991.  You are now 27 years of age.  You turned 27 during the early part of the charge period.  You have two sisters, and your parents separated when you were approximately ten years of age.

49The difficulties in your parents' relationship affected your early childhood years.  You also experienced difficulties in your relationship with your parents during your childhood, but you now have a very close and supportive relationship with your mother and father.

50You enjoy the continued support of your parents and sisters and extended family, and you had significant support in court during the plea hearing, as did you, Mr Perry.

51You attended St Kilda Primary School from 1997 to 2003.  In 2004 you commenced your secondary education at Malvern Secondary School.  In 2005 you attended Sandringham secondary school, and then from 2006 to 2007 you attended Caulfield Community School.

52You did not complete Year 10.

53In 2008 a Children's Court Clinic report confirmed the diagnosis of autism spectrum disorder.  In a report dated 3rd October 2008, Dr Manjiviona, clinical psychologist, noted the following about you.  She stated,

"He often misinterprets what is said to him.  He has a longstanding history of difficulty of coping with change, and has a strong need for routines and predictability.  He had difficulty using his imagination to try and imagine how people might think and feel in certain situations.  He exhibits the triad of impairments in the area of social interactions and communication, in both verbal and non-verbal domains, and imagination and obsessive interests and repetitive activities that support a diagnosis of autism spectrum disorder.  He presents as someone who is likely to be quite vulnerable in being driven to engage in behaviours that might be risky in order to gain acceptance, which is important to him after a life of rejection and ridicule."

54You demonstrated difficulties at school from an early age and did not form friendships with other children.  You were often in trouble at school and attended several secondary schools.  It is likely that these difficulties arose due to the symptoms of your autism spectrum disorder.

55You have had employment, having worked in various trades, and in property maintenance.  Your most recent employment was for the 12 months prior to your remand, when you were working for Southeastern Property Management.

56You have abused cannabis, ice and GHB for some years.  It is likely that you gravitated toward the use of illicit substances as it gave you the impression of greater social acceptance amongst like-minded peers, after your early years of not connecting with other young people due to your autism spectrum disorder.

57Your drug use has had a negative impact on your relationships with family and friends, and your capacity to maintain ongoing employment.  It was submitted to me that your drug use, together with your autism spectrum disorder, has also been an important factor in what was conceded were numerous court appearances.

58You have a criminal history dating back to your teenage years.  Your prior offending includes drug, dishonesty, violence and driving related matters.  Importantly you have no prior convictions for sexual offending.  The matters before me represent the first time you will be sentenced by a higher court, and the first time you will be sentenced to a term of imprisonment.  Of some significance in this matter is the fact that you were subject to Community Corrections Order at the time of the commission of the offences the subject of Charges 6 and 7.

59In addition to the 2008 report, a report from Dr Dion Gee, forensic psychologist, dated 17 November 2018 was tendered on your behalf.

60Dr Gee's report is a thorough, in depth assessment of your autism spectrum disorder, your symptoms and the relationship between your condition and the offending.

61In her very helpful outline of submissions for the plea on your behalf, your counsel, Ms Clark, summarised the key aspects of Dr Gee's report at paragraph 30 of her outline.  I do not propose to set out here in the same detail, but I accept the matters in Dr Gee's report as summarised by Ms Clark.

62It is clear from the reports that you experience prominent symptoms of autism spectrum disorder, including:

(a)       Difficulties with interpersonal and emotional functioning

(b)       Heightened difficulty appreciating social situations and compromised capacity to understand how others may feel and respond appropriately

(c)                   Impulsivity, compromised social connectedness and reduced social moral reasoning

(d)       Impairments of personality functioning related to empathy, intimacy, disinhibition and negative emotions.

63A neuropsychological report dated 9 December 2018 was also tendered on your behalf, and I accept the contents thereof, in particular the matters contained in paragraphs 45 to 48 regarding

(a)       A likely acquired brain injury due to chronic polysubstance abuse commencing prior to brain maturation

(b)       Associated verbal memory impairment and deficits in higher level functioning

(c)                   Vulnerability to institutionalisation

(d)       Hardship in custody.

64Your Counsel, Ms Clark, relied in particular upon Dr Gee's opinion at paragraph 52 of his report as a basis for her submission that the principles of Verdins relating to moral culpability were enlivened due to a causal link between your condition and your offending.  Dr Gee stated at paragraph 52 that:

"Regarding the nexus between Mr Elwood's impaired mental functioning and his aberrant behaviour, whilst it is difficult to assert a direct causal nexus, clinically there is an association mediated through his enduring neuro developmental disorder, impulsivity, compromised cognitive capacities, personality features, social naivety, and substance abuse, specifically with a backdrop of interpersonal social skills deficits, emotional and behavioural misregulation, cognitive distortions, markedly impaired social and moral reasoning, heightened capacity to the influence of others and a strong desire for social connectedness, Mr Elwood was seemingly in a position where he was more vulnerable than the average person to act in a manner without having given due consideration to the consequence of his actions."

65Whilst I find a nexus or connection between these aspects of your functioning and the offending, I do not find a causal connection.  I am unable to mitigate moral culpability in the sense considered in the case of Verdins.  Nevertheless, the circumstance of your psychological features is relevant to my understanding and assessment of the overall criminality.  Furthermore as submitted in the alternative by Ms Clark, it assists in an explanatory sense of understanding the offending to some degree.

66Reliance was placed upon the reports of Dr Gee, and to a lesser extent Dr Skelly, in support of a submission that you will experience greater hardship in custody due to your condition.  The prosecution conceded that mitigation on this basis was available to some degree.  I accept you will find custody more onerous than for someone not experiencing your impaired mental functioning, and that incarceration could exacerbate your core pathology and compromise your mental health and the sentence imposed reflects this consideration.

67I also accept that you now have adequate insight into your offending.  I accept Dr Gee's findings as to risk of reoffending as average and moderate.

68Ms Clark made submissions aligned with Ms Franjic's helpful and thorough submissions as to the objective seriousness of the overall offending.

69Your case, Mr Elwood, differs from Mr Perry in the important respect that you face the additional incident involving the penetration of your victim with a cucumber.  This incident was not committed in company, nevertheless it was degrading and humiliating.  It was filmed and it demonstrates your interest in engaging in the conduct on a separate occasion and whilst alone.

Parity

70I considered the issue of parity between each of you regarding Charges 1 to 4.  As I have already stated, there are two distinguishing aspects regarding the circumstances of the offending.  The first being the relative extent of the breach of trust, and to a lesser extent what I consider to be the slightly more significant role played by you, Mr Elwood, I have taken into account in those offences as revealed by the opening.  In relation to each of your personal circumstances, such differences as there are between you have for the most part levelled out when considered.

71I have assessed your prospects of rehabilitation, Mr Perry, as good.  In your case, Mr Elwood, reasonable.  I have taken into account the anguish you will carry with you in prison on account of being separated from your son, Mr Perry.  In your case, Mr Elwood, your autism spectrum disorder and the role it has played in your life.  The connection between your condition and the taking of illicit substances, and the effect of your condition in exercising judgment and consequential thinking, is a personal circumstance of yours that has been a factor in my assessment of your criminality, as well as a mitigatory factor in relation to your experience in custody.

72Balancing all of these circumstances as best I can, I have imposed what I consider to be modestly disparate sentences across Charges 1 to 4.  I was urged to have regard to the principle of totality and I do so.  Mr Brown on behalf of the prosecution submitted that cumulation was appropriate to reflect separate incidents and separate offenders.  I was also urged to exercise care to avoid double punishment in relation to Charges 1 to 4 on the basis that the commission of the offenses in company is a serious feature of the offending affecting the objective seriousness of the offending. It is also integral to the derivative liability expressed in Charges 2 and 3.  I have taken care to avoid double punishment due to the circumstance of the offending occurring in company.  Whilst I accept the episode represented by Charges 1 to 4 was brief and the basis of each additional charge for each of you was derivative liability, I have considered modest cumulation to be appropriate.  Both the prosecution and counsel for each of you addressed me on where your respective offending falls within the range of objective seriousness. 

73It is always a difficult exercise to grapple with terms such as lower end, mid, mid-high.  The vagueness of the terminology and the limitation of language hinders the utility of the discussion.  I was referred to the passage in Coronado where Appeal Justice Bongiorno's observation in the case of Simon was reproduced.[3]  It states:  

“The offence of rape comprises a wide range of criminal culpability and a sentence which is clearly appropriate in one case of rape will be manifestly excessive in a different case, and even manifestly inadequate in another.”

[3] [2016] VSCA 86, [20], citing [2010] VSCA 66 [60].

74It would be trite to list all of the significant features of a case of rape not present in your cases as examples of higher range offending.  It would be a long list.  Even features such as in company or breach of trust that are present in this case can vary in their gravity in a given case depending upon all of the circumstances.  Having regard to all of the objective circumstances of your case, I have a clear understanding of where the offending sits in the range. 

75It was submitted by the prosecution that this was a mid-high range example. I rejected that submission on the basis that a proper consideration of the broad range alluded to by Bongiorno JA, and the varieties of the offence one might expect to find in the mid-high range, each of your cases was self-evidently not one of them.  It was submitted to me that this was lower end, and I was provided with cases such as Coronado and others in support of the submission.  I am of the view that whilst the brevity and nature of the conduct might fit such a description, the features of it having been committed in company, being filmed and the breach of trust involved, take it beyond such a label.

76I am not going to place my own imprecise label on the conduct.  The offending has its own place in the range as I have determined, which is best described by these sentencing reasons and the sentences I impose, which after mitigation reflect the objective seriousness of the offending.  I have had regard to general deterrence, denunciation and protection of the community, your rehabilitation, your remorse and the pleas of guilty and other matters.  I have had regard to the standard sentence for rape.

Standard Sentence Offence

77I was addressed on the correct approach to take in relation to this sentencing factor, and the way it is to be taken into consideration.  All parties submitted that the approach of Champion J in the case of Brown[4] was the correct approach to follow.  I have done so.  I have taken the standard sentence into account as one of the factors to consider in my intuitive synthesis of all of the relevant factors.  My consideration of the standard sentence as one of these factors is reflected in the sentences I impose.

[4] [2018] VSC 742.

78The sentence I impose in respect of each charge of rape is lower than the standard sentence.  Having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending and matters available in mitigation, these are the sentences I have determined to be appropriate. 

79I will sentence you first, Mr Perry, if you would stand.  Mr Perry, on Charge 1, the charge of rape which alleges your digital penetration of BD, I impose a sentence of five years and three months.  On Charge 3, the charge of rape which was on the basis of Mr Elwood's penetration, a sentence of five years.  I direct that six months of the sentence on Charge 3 will be cumulative on Charge 1, that makes a total effective sentence of five years and nine months.  I set a non-parole period of three years and nine months.

80I declare that pre-sentence detention is 249 days, not including today.  I make the orders for forensic sample, and disposable orders that were sought.  Pursuant to s.6AAA, I indicate that but for your plea of guilty I would have imposed a total effective sentence of seven years with a non-parole period of five years.  You can sit down.

81Mr Elwood, on Charge 2, the charge of rape, I sentence you to be imprisoned for five years and six months.  This is the base sentence.  On Charge 4, the charge of rape, five years and three months.  On Charge 5, rape, five years and three months.  Charge 6, possession of drugs, three months.  Charge 7, possession of drugs, and as I indicated I was not satisfied that that was on the basis for a purpose unrelated to trafficking, nine months.  On the summary offence, one month imprisonment.

82I direct that six months of the sentence imposed on Charge 4 be cumulative on Charge 1.  I direct that 18 months of the sentence on Charge 5 be cumulative on Charge 1.  I direct that two months of the sentence imposed on Charge 7 be cumulative on Charge 1.  If my mathematics is correct, this makes a total effective sentence of seven years and eight months' imprisonment.  I direct that the non-parole period be four years and nine months.  I declare that 252 days have been served as pre-sentence detention. 

83On Charge 5, Mr Elwood, you are also sentenced as a serious sexual offender. I have had regard to the protection of the community and the fact of you being a serious sexual offender on Charge 5 does not alter the sentence I have imposed, but I make that declaration.

84Pursuant to s.6AAA, were it not for the pleas of guilty I would have imposed a total effective sentence of nine years with a non-parole period of six years and four months.  I make the orders for forensic sample, and the disposal orders that were sought. 

MS HOOPER:  Thank you, Your Honour.

HIS HONOUR:  All right.  Any other orders that are sought?

MS HOOPER:  No, Your Honour.

HIS HONOUR:  All right.  Thank you.

MS HOOPER:  May it please the court.

HIS HONOUR:  I'll adjourn until 11.30.

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