DPP v Granata

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0117

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ALFIO ANTHONY GRANATA	Respondent

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JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	3 December 2015, 16 March 2016, 25 May 2016
DATE OF JUDGMENT:	8 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 190
JUDGMENT APPEALED FROM:	[2015] VCC 699 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape (9), threat to kill (2), threat to inflict serious injury, theft, intentionally causing serious injury, possess drug of dependence (2) – Sentence of 17 years’ imprisonment, non-parole period of 13 years – Individual rape sentences of eight years – Whether sentence manifestly inadequate – Objective gravity of offending – Sustained, violent, worst category offending – Severe impact on victim – Offender affected by methylamphetamine – Whether psychological difficulties contributed – Fresh evidence on resentencing – Appeal allowed – Respondent resentenced to 23 years’ imprisonment with non-parole period of 17 years – Sentencing Act 1991 ss 6B, 6D, 6E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J C Silbert QC with Mr B L Sonnet	Mr John Cain, Solicitor for the Office of Public Prosecutions
For the Respondent	Mr P J Morrissey SC with Mr L J D Howson	Ann Valos Criminal Law

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons of Osborn JA. For the reasons his Honour gives, I too would allow the appeal and would resentence the respondent as his Honour proposes.

REDLICH JA:

For the reasons given by Osborn JA, which I have had the advantage of reading in draft, I agree that the appeal should be allowed, and the respondent sentenced as Osborn JA proposes.

OSBORN JA:

Introduction

The respondent is a 48 year old man. In January 2015, he pleaded guilty to nine charges of rape, one charge of intentionally causing serious injury, one charge of theft, two charges of make threat to kill, one charge of threat to inflict serious injury and two charges of possession of drugs of dependence.

Following a plea hearing in March 2015, he was sentenced by Judge Gucciardo in the County Court on 25 May 2015 as follows:

Indictment D10391034.2
Charge	Offence	Maximum	Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]	8 years	6 months
2	Theft [Crimes Act 1958 s 74(1)]	10 years [Crimes Act 1958 s 74(1)]	9 months	3 months
3	Rape	25 years	8 years	6 months
4	Rape	25 years	8 years	6 months
5	Rape	25 years	8 years	6 months

6	Make threat to kill [Crimes Act 1958 s 20]	10 years [Crimes Act 1958 s 20]		3 years	6 months
7	Rape	25 years		8 years	6 months
8	Rape	25 years		8 years	6 months
9	Rape	25 years		8 years	6 months
10	Rape	25 years		8 years	6 months
11	Make threat to kill	10 years		3 years	6 months
12	Threat to inflict serious injury [Crimes Act 1958 s 21]	5 years [Crimes Act 1958 s 21]		18 months	3 months
13	Rape	25 years		8 years	BASE
14	Intentionally causing serious injury [Crimes Act 1958 s 16]	20 years [Crimes Act 1958 s 16]		9 years	3 years 6 months
Indictment D10391034.D2
Charge	Offence	Maximum	Sentence		Cumulation
1	Possess a drug of dependence – methylamphetamine [Drugs, Poisons and Controlled Substances Act 1981 s 73]	5 years [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(c)]	6 months		-
2	Possess a drug of dependence – cannabis L	5 years	6 months		-
Total Effective Sentence:		17 years imprisonment
Non-Parole Period:		13 years imprisonment
Pre-sentence Detention Declared:		836 days
6AAA Statement:		18 years and 6 months imprisonment (Non-parole period: 14 years and 6 months imprisonment)
Other orders: Life reporting pursuant to the Sex Offenders Registration Act 2004; Disposal order.

On 18 June 2015, the Director of Public Prosecutions (‘the Director’) appealed against the sentence imposed on three grounds directed to the following matters:

(a) the alleged manifest inadequacy of a sentence of eight years’ imprisonment for the individual rape offences (other than charge 1);

(b) the selection of the sentence on charge 13 as the base sentence, when the sentence imposed on charge 14 was the longest of the individual sentences imposed; and

(c) alleged manifest inadequacy of the order for cumulation of sentences in circumstances where only six months’ cumulation was imposed respectively in relation to eight of the rape charges.

The sentencing judge was faced with a very difficult task. Over a period of some six weeks, the respondent threatened the victim with death and violence; effectively confined her to a hotel room; inflicted repeated assaults upon her, which resulted in more than 50 injuries detected on medical examination following her ordeal; humiliated and dominated her by forcing her to have sex with him during a series of distinct and grossly abusive episodes; and stole her personal belongings.

The fundamental problem facing the sentencing judge was the need to resolve the imperative to impose penalties which provided for just punishment and adequate denunciation, reflected the need for specific and general deterrence and, most significantly, provided for adequate protection of the community on the one hand, whilst, on the other hand, imposing sentences which were proportional to the overall criminality involved in the offending and gave due effect to the principle of totality. It was fundamentally necessary for his Honour to arrive at a combination of penalties which was, in its final outcome, just, but the extent and complexity of the offending rendered that task an arduous one.

For the reasons which I set out below, I have concluded that grounds 1 and 3 of the Director’s appeal must be upheld.

The sentences imposed with respect to the eight rapes comprising the basis of charges 3, 4, 5, 7, 8, 9, 10 and 13 did not adequately reflect their objective gravity and were manifestly inadequate.

The cumulation of six months’ imprisonment in respect of each of eight of the rape charges (charges 1, 3, 4, 5, 7, 8, 9 and 10) was manifestly inadequate to reflect the significance of the individual criminality involved in each of the episodes of rape.

It follows that the respondent must be resentenced. Again, for reasons which I will elaborate, I would sentence him to a total effective sentence of 23 years’ imprisonment.

Background facts

The offences of violence, rape and theft were committed upon a 21 year old woman who visited Australia as a tourist in late 2012.

At that time, the respondent was living in a de facto relationship with one Ms Peaston in a room at a hotel in Preston.

The victim met the respondent and Ms Peaston in late October 2012. They formed a friendship and engaged in the mutual use of illicit drugs including, in particular, the smoking of methylamphetamine.

They also began to engage in consensual sexual activity together. In association with continuing and escalating drug use, however, the relationship descended into one of violence and abuse by the respondent towards the victim.

Between early November 2012 and 25 December 2012, the respondent kept the victim substantially confined to the hotel room in Preston, restricted her contact with other people (including her family in Holland), repeatedly assaulted and raped her, and stole her personal belongings.

The plea was settled on the basis that some charges would cover composite acts.

Charges 1, 3, 8 and 10 comprise rape charges based on single acts of penetration. But charges 4, 5, 7, 9 and 13 comprise rape charges based on multiple acts of sexual penetration. Charge 14 was also agreed to cover all the assaults inflicted upon the victim during the relevant period.

The plea also proceeded on the basis of an agreed set of facts constituted by a written prosecution opening.[1] Because there has been some dispute on appeal as to the proper characterisation of aspects of the offending, it is necessary to quote the agreed facts to make clear the basis on which the sentencing judge formed his conclusions. I have removed any identifying details that are irrelevant, in order to retain, so far as possible, the anonymity of the victim.
[1]The following indented paragraphs numbered 8–99 are extracted from the Prosecution Opening dated 25 March 2015 filed in the County Court of Victoria (‘Prosecution Opening’).

First episode of violence
8.In early November 2012, [FI] attended hotel room [number]. [FI] was the friend of Granata’s who had driven them from St Kilda to the hotel room in late October. [The victim] and Peaston chatted to each other while [FI] and Granata spoke. At some stage, Granata, Peaston and [the victim] smoked amphetamines and were having a good time. Upon [FI] leaving the hotel room, Granata became violent towards [the victim] and Peaston. Granata grabbed [the victim]’s throat. He punched [the victim] once to the stomach. (This forms part of Charge 14 – ICSI.) This occasion was the first time that Granata was violent to [the victim]. He also punched Peaston in the stomach several times.
9.Very shortly after this assault, Granata returned to being caring and loving towards [the victim] and Peaston. [The victim] put the behaviour down to drug use and believed if she was careful about what she said there would be no further violence.
10.In the following days [the victim] told Granata and Peaston she wanted to return to her hostel. Both Granata and Peaston pleaded with her to stay with them and acted like they were upset and offended whenever she wanted to leave. Granata and Peaston often told her that they would take her home but this did not eventuate. [The victim] noticed that the situation changed from her wanting to stay with Granata and Peaston to feeling as if she was unable to leave.
11.Several weeks after meeting Granata, Granata told [the victim] that he had killed many people and had never been caught as he was very clean and precise. He continued to tell [the victim] this over the following time she was at the hotel. He told [the victim] and Peaston that he had killed 248 people and that they were going to be his next victims, namely, numbers 249 and 250. He told [the victim] that the previous year, Peaston had betrayed him and he nearly beat her to death. [The victim] believed that Granata had previously killed people and was in fear of him.
First episode of assault with a knife
12.One night between 6 and 15 November 2012 Granata became paranoid that Peaston and [the victim] were engaging in sexual activity behind his back. In early November 2012 Granata left [the victim] and Peaston in his vehicle while he went to collect some drugs. When they all returned to the hotel room he became angry. He got a large kitchen knife and pushed it against [the victim]’s throat. He then used the knife to scratch a cross into [the victim]’s forehead and said that she belonged to him and was ‘marked for death’ for betraying him. He continued to assault her in the hours that followed. He grabbed her hair and punched her multiple times in the stomach, arms and face. He hit her with the blunt side of a knife to the side of the throat. (This forms part of Charge 14 – ICSI.)
13.At this stage [the victim] was still paying rent on her room at the hostel but staying with Granata and Peaston in the hotel room. She did not go to work with the cross injury on her forehead. Work had given her some time off as she was coming in late and was ‘foggy’.
14.It was a rule of Granata’s that there was [to] be no moving, screaming or crying when he beat her. She was not allowed to look at Peaston and she had to look Granata in the eyes or at the floor. Any infractions resulted in more beatings. Even if [the victim] and Peaston were looking downwards he would accuse them of signalling to each other. He also accused them of using the mirrors in the room to give each other signals.
15.At times Granata told [the victim] that he was possessed by demons or the spirit of his grandfather.
First episode of rape
16.Towards the end of November 2012, Granata demanded a threesome of [the victim] with him and Peaston. He grabbed [the victim] by the head and pushed her face into a pillow and grabbed at her face and neck. [The victim] told him that it hurt. Granata then put his penis into [the victim]’s vagina without her consent. (Charge 1 – Rape.)
17.After this, Granata appeared to become possessed and grabbed [the victim]’s and Peaston’s hair and slammed their heads together, breaking [the victim]’s nose. He bit hard on [the victim]’s lip causing it to bleed and bruise. He also bit on [the victim]’s neck with force. He grabbed [the victim]’s hair. He hit her to the face, and also on her back and spine. He stomped on her head, legs, chest and back. [The victim] attempted not to respond but was in pain. Granata said that he had killed many people, that she and Peaston had until Christmas to do ‘good by him’ and that they would not see the New Year. (This forms part of Charge 14 – ICSI.)
Toto episode
18.Between 25 November and 9 December 2012 Granata claimed to be possessed by one of his ancestors called Toto. He seated [the victim] and Peaston on the floor and proceeded to punch and kick them. He forced them to lie in a lover’s embrace with their eyes closed and took photos with a silver Fuji camera. He said that that is how they would be placed in a grave. He stated he would cut their throats. He punched [the victim] and choked her while she was on the floor. (This forms part of Charge 14 – ICSI.)
19.[VD] was a friend of [the victim]’s. They had shared accommodation together before [the victim] moved into [the hostel], and they had worked together at [a] restaurant. Just before [the victim] was fired from the restaurant, [VD] saw that [the victim] had a black eye and bruises on her arms. They subsequently spoke occasionally on the phone but [the victim] spoke quickly and told [VD] that she was living with people who got annoyed with her quite easily.
Stab to foot episode
20.Between 6 and 15 November 2012 but after the time that Granata had cut a cross in [the victim]’s forehead, Granata told [the victim] and Peaston that he was going to kill them. He bashed them both and pulled hair out of each of them. He then put them both in a cold shower. He said that he would drive them to a quiet place like a park and kill them and no-one would ever find them. While [the victim] and Peaston were in the shower, Granata constantly asked questions of [the victim] about what had happened between [the victim] and Peaston. Despite not having any sexual activity with Peaston (except for the prior consensual threesomes in the first few weeks or so) [the victim] was convinced that if she said that she and Peaston had had sex then she, [the victim], would survive. [The victim] then said that things had happened with Peaston; Peaston ultimately agreed. Granata had a black knife with a silver blade. He cut Peaston with the knife. Then he made two cuts on [the victim]’s upper left arm, one on her left underarm and one on her stomach. The injuries were bleeding. He then stabbed [the victim] to the inner left ankle and it streamed with blood. Granata placed a knife between [the victim] and Peaston while they were in the shower; he told them to kill each other. He put the knife to [the victim]’s throat and told her to hold the knife against her throat, otherwise he would slit it. [The victim] complied as she was terrified. At some point, Granata dragged [the victim] out of the shower and punched her in the face a number of times. (This forms part of Charge 14 – ICSI.) The next day [the victim] was covered in bruises. The stab injury was open for a week and [the victim] was unable to stand on that foot for two weeks.
21.Granata was convinced that [the victim] was trying to steal Peaston away from him.
22.During this period of time Granata made [the victim] believe that he would kill her family and friends if [she] did not do what he wanted her to do. He stated that he was connected to the mafia and had close connections with the security at [the Preston Hotel]. Granata also told [the victim] that he had criminal connections in Holland; and around the world; and he told her that he knew where her parents lived and with one phone call by him, he would get her parents killed.
23.[The victim] believed that if she tried to escape then Granata would kill her family and friends.
24.[The victim] felt unable to maintain her work as a waitress. Her employment was ceased as she had become too unreliable. After being stabbed in the foot, she was unable to work in any event because of difficulty walking.
25.On 17 November 2012 [DW], a security officer with [the Preston Hotel], attended room [number] in relation to a noise complaint regarding a female sobbing for two hours. The door was opened by a female and [DW] saw another female and Granata in the room. [DW] did not recognise either female to be Peaston. Granata said they had been watching a sad movie quite loudly. The female who answered the door pointed to the other female and said she had recently received some bad news. That female just stared ahead of herself blankly. [DW] subsequently compiled an incident report.
26.In early November Granata, Peaston and [the victim] attended [M’s] house ([M] being [FI’s] stepfather). Granata spoke in grandiose terms of his lineage to the Calabrian mafia. [The victim] practically did not speak at all.
Hostel episode
27.On 18 November 2012 Granata and Peaston drove [the victim] to [the hostel] in South Melbourne to collect all of [the victim]’s property. Peaston drove, [the victim] was in the front passenger seat and Granata sat in the back. He beat [the victim] with his fists. He twisted her arms behind her back and pushed her head onto the console. Granata hit her in the face and then got a screwdriver, pulled her by the hair and pushed the tip of the screwdriver hard into the veins of her neck, piercing the skin. (This forms part of Charge 14 – ICSI.)
28.While in the car, [the victim] had to describe her hostel room and explain how the lock worked. Upon arriving at the hostel [the victim] was made to wait in the car with Granata while Peaston used [the victim]’s swipe card to access the hostel room and take all of her belongings inside. The belongings taken included a Samsung laptop and charger, a pink Nintendo DS and charger with DS games, a silver PSP with games and charger, a Fuji camera, a Nokia mobile telephone and charger, clothing, $800 cash and other personal effects. Granata and Peaston told [the victim] that all of her things now belonged to them. From this time [the victim] was not permitted access to any of her property other than the occasional use of her clothing. (Charge 2 – Theft.)
29.[The victim] was assaulted in the car on the way back to [the Preston Hotel].
30.[The victim] suffered extensive injuries and lacerations from the assaults inflicted on her on this day. She was unable to see or eat in the following days as her face was badly swollen and bruised. Her left eye was closed for days. She couldn’t open her mouth for a day. (This forms part of Charge 14 – ICSI.)
31.[MS] was the duty manager at [the hostel]. On Sunday 18 November 2012 there was an incident in which he believed that [the victim] gave her access card to another person who then took property from her room. [The victim]’s last rental payment was made on 16 November 2012, paying up until 23 November 2012.

32.Several days later, [the victim] received a telephone call from police while she was in the hotel room in the presence of Granata and Peaston. The police asked her if she had had property stolen from [the hostel]. [The victim] told them that everything was OK. She said this because she was afraid for her safety.
33.[The victim] had three Westpac Bank accounts. One was a cheque account; one was a short-term savings account; the third was a long term savings account. Granata made [the victim] transfer her money from her two Westpac accounts into her cheque account. He made her give him her PIN and over the next few weeks withdrew all available funds from the account via an ATM. [The victim] also had two Dutch bank accounts, including a credit card. Granata used the credit card. [The victim] was not allowed access to her money at all.
34.Granata also changed the settings on her laptop which enabled them to convert the laptop for their own use. [The victim] had to give Granata her password and he then substituted his own. She also had to assist Granata to change the language from Dutch to English.
35.The hotel room was small and contained a double bed. There was a bathroom containing a shower, a basin and a toilet. The window blinds were always taped closed. There was a red cupboard containing Granata’s and Peaston’s clothes. [The victim]’s clothes were on a stack of boxes. Their laptop was on a desk and they put [the victim]’s laptop on a couple of boxes.
36.In early November 2012 [the victim’s father] became concerned about the little contact he and his wife had had with their daughter. Prior to that, they had had regular weekly contact with her, talking over Skype for at least half an hour. Halfway through November 2012 he and his wife had a 10 minute Skype session with [the victim]. A week later he called her on Skype but she said she didn’t have time and had to go.
Second episode of rape
37.About two days after receiving the beating on 18 November 2012, Granata forced [the victim] to give him oral sex. She was sitting on the floor in front of the bed and he was standing in front of her. He forced his penis into her mouth despite [the victim]’s difficulties in moving due to the pain she was suffering as a result of injuries sustained during the earlier assault. The penetration went on for about 20 minutes. (Charge 3 – Rape.)
Visit to the doctor
38.On 20 November 2012 at approximately 11pm Granata took [the victim] to [a doctor’s] clinic where she was seen by a doctor called [Dr M]. Granata forced [the victim] to make up a story that she had been assaulted and robbed behind her hostel in order to explain her facial injuries to the medical staff, including [Nurse GH]. [Dr M] had not seen [the victim] previously. The doctor noted that she had (a) bruising under her left eye; (b) bruising around both sides of her mouth as well as swelling; (c) a laceration to the left side of her jaw; (d) bruising and swelling to her nose; and (e) superficial bruises to both arms. The doctor supplied [the victim] with a medical certificate. [The victim]’s injuries had been inflicted by Granata previously; [the victim] lied when she said that she had been assaulted and robbed behind her hostel.
39.[The victim] had a black Nokia mobile telephone. At the beginning she was allowed to use it but Granata and Peaston would have to be around to listen to what she said. If she sent a message they would read it to make sure that she had said nothing wrong. As time progressed Granata did not allow [the victim] to make any telephone calls without his consent. On occasions Granata permitted phone calls or Facebook posts to select friends and family in order to tell them she was OK and stop them from worrying about her. [The victim] had to tell Granata what she was going to say before she called and they were present during the conversations. Both Granata and Peaston also checked [the victim]’s Facebook. If people called on [the victim]’s phone, then [the victim] had to tell the caller that everything was OK.
40.[ZR] was the chief financial officer at [the restaurant]. [The victim] worked at the restaurant for over a year. From around early October 2012 she became a little unreliable. Her last shift was Sunday 11 November 2012. [ZR] told [the victim] to have a week off (i.e. 12 to 19 November 2012). She was meant to return to work on 19 November 2012 but didn’t show. [ZR] rang [the victim] who told him that she’d been attacked on the weekend and couldn’t work. About a week later [the victim] came in to the restaurant with a medical certificate. [ZR] saw that she had a black eye.
41.On 27 November 2012 [the victim’s father] and his wife spoke to their daughter on the phone. She told them she’d been beaten up and robbed by three guys. She said they had come at her with a knife and broken her nose, and she’d hand [sic: read had] to hand over her cards and money. She sounded emotional.
First episode involving phone charger cable
42.In mid to late November 2012 one afternoon Granata used a phone recharger cable to whip [the victim] and Peaston. Granata whipped [the victim] over her body causing several concentrated red marks on her skin. Granata then accused [the victim] and Peaston of sleeping together behind his back and got a knife. He put the knife on Peaston’s throat and then on [the victim]’s throat, before pointing it deep on [the victim]’s legs. The assault continued for hours with [the victim] telling him lies about her sexual activity with Peaston to appease Granata. Granata also beat up Peaston with metal and wooden objects. (This forms part of Charge 14 – ICSI.)
43.Later the same evening Granata used metal chains to hog tie Peaston’s arms and legs together. Granata stated that if you get tied up in these chains it means certain death. He forced [the victim] to hold the chain whilst he beat Peaston with a number of objects. At one point Granata told [the victim] to get a knife and she did so, and then Granata held it to Peaston’s throat. [The victim] was terrified and fearful for her life if she did not comply. Granata said to [the victim] that if she did what she was told then she might have a chance to survive.
44.On a number of occasions over the time [the victim] was in the hotel room, Granata made [the victim] use sex toys on herself as he watched. If [the victim] refused she would be beaten. Granata would have Peaston perform oral sex on him while he watched [the victim] use the sex toys.
45.Granata prepared methamphetamines (ice) for a glass pipe every day. [The victim] smoked the drug. She says that she soon realised that smoking the drugs assisted her [to] feel less pain.
Night before court rape episode
46.Granata was obliged to attend court on several occasions. One night before one of these court appearances he forced [the victim] and Peaston to have sex with him. He made them give him oral sex. Granata also raped [the victim] by putting his penis inside [the victim]’s vagina for about 5 or 10 minutes. (Charge 4 – Rape.)
Second episode involving phone charger cable
47.On another occasion before a court appearance by Granata in the morning, he got a phone recharger cable and began whipping [the victim] and Peaston. He folded the cable over itself and held it in one hand whilst striking [the victim] on the back, legs and arms. The cable made lacerations on [the victim]’s back that ripped the skin off and bled in two patches. Her left arm had two stripes running down from the shoulder to the elbow. The marks were about 5mm wide and were present on her body for a number of days afterwards. After this beating, Granata said they all needed to get dressed for court. Granata got angry with [the victim] and used a knife to cut off her clothes from her body. As Granata cut through [the victim]’s shirt, jeans and belt he cut through the skin on her legs. He then forced [the victim] and Peaston into the shower and made them sit on the floor. He slammed [the victim]’s head against the wall a number of times, causing bleeding. As he showered, he forced [the victim] to keep her mouth open and look at him as he washed himself. He then urinated on both [the victim] and Peaston. (This forms part of Charge 14 – ICSI.) Granata and Peaston then left for court, leaving [the victim] to clean up.
Vacuum cleaner pipe episode
48.On or about late November 2012 Granata held a vacuum cleaner pipe and sat in front of [the victim]. He placed the pipe against her neck with both hands and commenced pushing down on it preventing her from breathing. He threatened her that if she moved he would choke her. He then hit her on the head and legs with the pole causing large bruising, swelling and pain. (This forms part of Charge 14 - ICSI.) Peaston was also beaten by Granata.
49.[TH] was a student who rented room [number] at [the Preston Hotel]. He was in the room next door to [the room] occupied by Granata and Peaston. From the time that he moved in from late October 2012 he often heard noises which sounded like a female in distress. He saw a male and a female from [that] room from time to time. He did not speak to them. The female was aged about 35, had long brown hair and was very pale skinned. The male was well built. At one stage he saw the female with a black eye.
50.In November 2012 [TH] heard a female voice from [the room next door] saying ‘don’t hurt me, don’t hurt me’ followed by a loud bang, and then silence. He complained to reception. On 27 November 2012 [PP], a security officer at [the Preston Hotel], at 10:30 pm received a complaint from [TH] saying that he could hear a female screaming and crying [next door]. [PP] called police, and when the police arrived he took them to [the room]. Those police were Constables Englehart and Dri. At about 11:30 pm they spoke to Peaston; she said she’d had an argument with her friend. They also spoke to [the victim], who confirmed there had been such an argument. [The victim] told the police that everything was OK because she was afraid that otherwise Granata would hurt her and her family. Police then left.
Head banging episode
51.Around 20 to 25 November 2012 Granata raped [the victim] by putting his penis into her vagina. (This forms part of Charge 5 – Rape.) Granata also had sex with Peaston. They were all on the bed. Granata became angry and he banged [the victim]’s and Peaston’s heads together and punched them both in the face. At one point [the victim] fell unconscious. He subsequently grabbed [the victim]’s throat and said ‘I’m going to kill you now’. [The victim] was unable to breathe and felt like she was going to faint. She started kicking and struggling and Granata released his grip. (This forms part of Charge 14 – ICSI).
52.Granata then forced [the victim] to lay on the edge of the bed on her back, with her knees up. He told her that she was a worthless piece of shit and Peaston agreed. Granata told [the victim] that she had previously hurt Peaston when she and Peaston had had sex together and that he wanted Peaston to now do the same to [the victim]. Granata asked Peaston to get a vibrator and put it in [the victim]’s anus. Peaston grabbed a pink vibrator and pushed it into [the victim]’s anus and roughly moved it around. [The victim] was in pain. [The victim]’s anus began to bleed and a towel was then placed underneath her to absorb the blood. (This forms part of Charge 5 – Rape.) Granata hit [the victim] in the face and made her turn to face him. [The victim] was on her knees on the bed and Granata was standing next to the bed. Peaston was still penetrating [the victim]’s anus with the vibrator. Granata grabbed [the victim]’s hair and put his penis in her mouth. (This forms part of Charge 5 – Rape.)
53.Granata then asked Peaston to pass him a banana, which he then inserted into [the victim]’s vagina. [The victim] felt the banana scratch the inside of her vagina. (This forms part of Charge 5 – Rape.)
54.On 28 November 2012 L/S/C Percy and S/C Heath attended [the] room at [the Preston Hotel], conducting inquiries in relation to a car accident on 20 October 2012. L/S/C Percy knocked and got no answer. He knocked again. [The victim] was pushed into the shower. Peaston eventually opened the door about 45 degrees and poked her head around. Percy asked to speak with Granata. Peaston told him to wait and that she would get him and then closed the door. The two police waited in the hallway. Granata then opened the door minimally and came out into the hallway. He denied being the driver at the time of the accident and nominated his carer, Peaston, as being the driver. Granata then went inside the hotel room; Peaston came out and closed the door behind her. Percy had a conversation with Peaston about the accident and Granata poked his head out of the door at one point and showed police a court extract. Percy told Peaston that she might be summonsed and Percy noticed that Peaston was covered in bruises. Peaston told Percy that she had had an altercation with her girlfriend. Throughout the attendance of police, Granata and Peaston took turns guarding [the victim] while the other spoke to the police in the hallway. The police remained unaware of [the victim]’s presence in the hotel room.
Truth threats to kill episode
55.On or about 2 December 2012 Granata told [the victim] and Peaston that they had to tell him everything that happened between them otherwise he would kill them. (Charge 6 – Threat to kill.) There is footage of this on an iPhone.
Episode after Peaston’s birthday
56.Peaston’s birthday was on 3 December 2012. Granata told Peaston that she could do what she wanted and asked her where she wanted to put [the victim]. Peaston replied ‘Just put it over there’. [The victim] was then kept in the shower for the day and slept.
57.Granata had previously told [the victim] that 5 December 2012 was the day that he wanted to know everything that had happened between [the victim] and Peaston, and that she had to tell the truth to him or he would kill them both.
58.Granata was sitting on a chair in front of the bed. Peaston was sitting on another chair and [the victim] was sitting on the bed. Granata hit Peaston. He punched [the victim] in the face and kicked Peaston off her chair. He forced [the victim]’s head onto the seat of a chair, got a knife and pressed it into [the victim]’s throat, threatening that he would kill her if she didn’t speak. [The victim] begged him to stop however he continued to beat her with his fists. He also struck her with the blunt side of the knife. He used a wooden stick with prongs to [sic] and struck her on the body and head, causing bruising and lacerations. She began bleeding from the back of [her] head and ear and he moved her into the shower. Peaston was also put in the shower by Granata. In the shower, Granata continued to hit [the victim] and further threatened her with the knife, stating that he was going to kill her. He beat her for some time. Granata then got [the victim] out of the shower to do some chores. [The victim] was sitting on the floor in the hotel room drying dishes when Granata hit her on the legs and head with the vacuum cleaner pipe. She lost consciousness. (This forms part of Charge 14 – ICSI.) Granata put her in the shower and put the cold water on her. Then he gave her Valium tablets and she slept in the shower for two days.
59.Towards the end of the period of offending, Granata called [the victim] his little slut and his personal slave. He wanted her to repeat these phrases to him. He told both [the victim] and Peaston that he was going to die on New Year’s Eve because of the demons possessing him, and that he would kill them both before he died. For the last three to four weeks, Granata and Peaston would not allow her on the bed anymore and the shower was [the victim]’s bedroom. Granata became more and more violent towards [the victim].
60.There were seven or eight working cameras in the hotel room, including two cameras in the shower area. One was in the air conditioner. The cameras recorded sexual and other acts by Granata, Peaston and [the victim]. Granata and Peaston replayed the footage on several occasions to show [the victim] that the cameras were working. Towards the end of the period of offending when [the victim] was effectively confined to the shower, she was not allowed to put her clothes on and she was too scared to do so when Granata and Peaston were asleep in case they replayed the camera footage and saw what she had done.
Burnt hair episode
61.On or around 21 December 2012 [the victim] was sitting naked on the bed when Granata grabbed her by the hair and punched her in the face. She tried to protect her head. He then used a jet lighter to burn some of her hair. [The victim] said that she was sorry but he told her to ‘shut up you fucking maggot’. He then punched [the victim] again in the face. He wore large rings on his fingers and caused a gash on [the victim]’s forehead. (This forms part of Charge 14 – ICSI.) After assaulting [the victim], Granata put her into the shower where she slept naked on the floor.
Bound and blindfolded episode
62.On or about 22 December 2012 Granata threw some clothes into the shower and told [the victim] to dress and do some chores. As she sat facing the wall in the hotel room and drying the dishes, he hit her with a wooden dough roller on the leg and kicked her in the ribs, head and stomach. She tried to protect herself, which only made him angrier. He continued to beat her. He then threw her in the shower. She received bruises and a lump on the right leg. About two hours later Granata entered the shower and told [the victim] not to upset him and to just shut up. (This forms part of Charge 14 – ICSI.)
63.Later that same day, Granata placed a blindfold on [the victim]’s head so she couldn’t see. There were no holes in the blindfold. Then he put what [the victim] perceived to be a dog collar on her neck. The video footage does not provide support for this belief; rather it appears to be a length of ribbon. Granata attached a leash to the item around her neck and pulled her by the hair whilst forcing her to crawl on her hands and knees following him around the room like a dog. Granata told her that if she felt that Peaston touched her or was sending messages to him then she had to bark. Granata told Peaston that he had a little doggy that was going to suck him off and then forced his penis into [the victim]’s mouth as she followed him around. (This forms part of Charge 7 – Rape.)
64.Granata then bound [the victim] with her arms up tight behind her back. He dragged [the victim] partly onto the bed using the ribbon perceived by [the victim] to be a dog collar, got behind her and forced his penis into her vagina, penetrating her in and out. (This forms part of Charge 7 – Rape.)
65.Granata became angry. He grabbed [the victim] by the hair and dragged her around whilst kicking her in the ribs. [The victim] begged him to stop and to re-do the ties on her head so that he would then know that she was unable to see out (and therefore would not be able to look at Peaston). Granata re-tied [the victim]’s head and arms, wrapping them even tighter and adding a black plastic bag over the ties on her head. He made a small hole in the bag for [the victim]’s mouth. He tied her hands high up behind her back.
66.He then dragged [the victim] onto the bed again and forced his penis inside her mouth. [The victim] was gasping for air and if she tried to say anything or was not performing the oral sex well enough then he hit her and forcefully squeezed her head between his legs. He then left her on the bed for about an hour. (This forms part of Charge 7 – Rape.)

67.Granata returned and accused [the victim] of trying to untie herself. He kicked her several times in the back and untied her before again hitting and kicking her in the head and body. He got a metal meat tenderizer and hit [the victim] three or four times in the chest with it. He hit her repeatedly on the spine, shoulders and legs. She felt pain from each hit. (This forms part of Charge 14 – ICSI.) She spent the night in the shower. [The victim] subsequently saw the head of the meat tenderizer lying on the floor but could not recall how it was broken.
68.There is footage of the bound and blindfolded episode from the Samsung Laptop and the shower camera. [The victim] is bound and blindfolded with her hands behind her back and a bag over her head for a period of four hours. [The victim] performs oral sex on Granata and Granata penetrates [the victim]’s vagina with his penis.
69.While [the victim] was in the hotel room she wrote a letter to her parents in Dutch, and the same letter in English so that Granata could read it. That letter was never sent. Granata told [the victim] and Peaston to write things down that they had done to each other. [The victim] complied but most of what she wrote was false. A list was created from [the victim]’s phone contacts of people Granata could have sex with. He asked [the victim] if there were people who would give her money to get her out of trouble and [the victim] told him that her parents were poor and jobless.
Lettuce sandwich episode
70.Granata and Peaston did not provide [the victim] with much to eat. On one occasion between 15 November and 15 December 2012 Peaston put a plate with two slices of bread and lettuce outside the shower on the floor. Granata then watched [the victim] eat but before she had finished the food, Granata said he wanted oral sex. [The victim] went into the room and performed oral sex on him for about 20 minutes. (Charge 8 – Rape.) Then he became angry and hit [the victim] in the head, back, ribs and chest with his fists causing swelling and bruising. (This forms part of Charge 14 – ICSI.)
71.In the first half of December 2012 [the victim’s father] and his wife made many attempts to call their daughter; usually there was no answer. Once she did answer but didn’t say much. On 14 December 2012 [the victim’s father] placed a message in English on Facebook asking that if anyone had seen [the victim] could they please contact him and his wife as they were worried sick about her. On 16 December 2012 [the victim] called via Skype and told her parents not to worry; she sounded hazy and didn’t make sense.
72.In mid-December, [TH], the student who rented [the room next door] at [the Preston Hotel], heard noises from room [number] which sounded as if the male was having rough sex with the female. He rang reception to complain about the noise. It always appeared to be the same female voice he heard since late October 2012. The noises were regular and horrible and [TH] tried to sleep at other friends’ places to avoid sleeping in his room.
Stealing food episode
73.On or around midday on 23 December 2012 [the victim] was doing chores in the communal kitchen. The communal kitchen was on the third floor. She was very hungry and quickly ate some food from the communal fridge. Granata entered the kitchen and caught her eating and took her back to the hotel room where he kicked her in the ribs and head. Granata’s friend, [FI] was present in the room, sitting on an esky box near the shower. Granata told [FI] that [the victim] was conspiring to run away with Peaston. Granata stood over [the victim] and continued kicking her hard in the ribs. He threw her in the shower. (This forms part of Charge 14 – ICSI.)
Shower and vibrator episode
74.After an hour or so, Granata went to the toilet. It was his practice to take a shower after using the toilet. He entered the shower and told [the victim] to undress and have a shower with him. He slammed [the victim]’s head and body against the wall. He roughly inserted his penis inside her vagina. (This forms part of Charge 9 – Rape.) He then kicked her to the floor and pulled her up again, forcing his penis inside her mouth. (This forms part of Charge 9 – Rape.)
75.Granata moved [the victim] into a number of positions and tried to force his penis inside her anus. He was unable to penetrate her anus with his penis, so he grabbed a large blue vibrator and forced it inside her anus roughly, moving it in and out before removing it and again trying to insert his penis. His penis went flaccid and he was unable to penetrate [the victim]’s anus and he left her in the shower. (This forms part of Charge 9 – Rape.)
Joint assault on bed episode
76.Later that day Granata got [the victim] out of the shower and forced her to put his penis inside her mouth. (Charge 10 – Rape). Peaston was also giving Granata oral sex at this time. One of Granata’s rules was that he did not allow [the victim] and Peaston to look at or touch each other whilst they gave him oral sex; they were often asked to perform oral sex on him simultaneously. [The victim] believes she may have accidentally touched Peaston at this time. Granata asked Peaston if [the victim] had touched her. Peaston replied yes. Peaston jumped up and grabbed [the victim] by the hair and hit her to the head and back. Granata kicked [the victim] while this was occurring, and told [the victim] that she was a ‘fucking maggot that deserved to die and it was better to slit her throat’. Granata kicked [the victim] in the face. [The victim]’s nose then started bleeding and Granata and Peaston returned her to the shower. (This forms part of Charge 14 – ICSI.) [The victim] spent the night there.
77.There is footage of this joint assault on the bed episode from the Samsung laptop. [The victim] performs oral sex on Granata. Peaston grabs [the victim] and hits her whilst Granata kicks [the victim].
Threat to kill parents episode
78.Between 22 and 23 December 2012 Granata made a telephone call in front of [the victim] and spoke a mixture of Italian and English to the person on the other end. [The victim] can understand some Italian. Granata supplied the full names and the address of [the victim]’s parents in Holland. When he ended the call, he told [the victim] that he had people in Holland who would locate her parents within two hours and so with the next phone call by him, his people would be able to kill her parents immediately. (Charge 11 – Threat to kill.)
Ritual episode
79.On 24 December 2012 Granata and Peaston took [the victim] out shopping with them. At one point the two women were left alone in the car. Upon returning to the hotel room at Preston, Granata became angry and accused [the victim] and Peaston of planning another night together. [The victim] was in fear that Granata would kill her. Granata hit her in the face and in her ribs, causing her to fall to the floor. He kicked her repeatedly when she tried to sit up. He told Peaston to get on the floor; both [the victim] and Peaston were kneeling. He hit Peaston. He hit [the victim] to the head. He told them both that they were maggots and deserved to die. Peaston got up and punched [the victim] several times in the face, and to [the victim]’s neck, back and spine. Peaston also grabbed [the victim]’s hair and dragged her while punching and kicking [the victim]. (This forms part of Charge 14 – ICSI.)
80.Later that evening, Granata told [the victim] such things as: The killing has begun. Your death is certain. I will hurt you so bad that you will need life support for weeks, and when you’re better, I will start all over again. I will peel all your skin off with a knife and cut off all your fingers and toes. You stupid girl to defy me. (Charge 12 – Threat to inflict serious injury.)
81.Granata then performed a ‘ritual’ on [the victim]. He cut her photo out of her old passport and put it in an envelope. He told her to cut her own fingernails and toenails. When [the victim] was cutting her toenails he told her to hurry up or he’d put the whole toe in instead. He cut a piece of her hair. These items were also placed in the envelope. During this ritual Granata struck [the victim] with his fists and made her spit blood from her mouth into the envelope. Peaston then passed Granata a lit candle; he used the hot wax to seal the envelope and poured and flicked some over [the victim]. He told [the victim] that the ritual was to symbolise that her being was no more and that all that would remain of her would be the contents of the envelope.
82.During this ritual Granata threatened [the victim] with a knife as well as hitting her multiple times with his fists; he put a knife to her throat and cut through the skin on her cheekbone, causing it to bleed. He made [the victim] suck his penis at the same time as Peaston; during which he grabbed [the victim]’s hair and pushed her towards Peaston. (This forms part of Charge 13 – Rape.)
83.After this ritual, [the victim] ended up seated on the floor in the shower with her back against a wall. Granata got a knife and forced [the victim] to open her legs and he put the knife inside her vagina. She was terrified. She watched as he put the knife approximately 2cm inside her and she felt the sharp edge inside her vagina. (This forms part of Charge 13 – Rape.)
84.There is footage of some of the ritual episode from the Samsung laptop, the HP laptop and the shower camera. The footage shows [the victim] and Peaston performing oral sex on Granata, Granata kicking [the victim] to the head, punching her and striking her with a knife. It also shows Granata cutting [the victim]’s hair and blowing candle wax on her while she is on the bathroom floor.
85.In the early hours on 25 December 2012 Granata and Peaston fell asleep on the bed in the room and [the victim] was in the shower. [The victim] believed that she would be killed when Granata and Peaston woke up. She crawled around the room and got a knife from the desk, and then crawled to the side of the bed. Both Granata and Peaston were in the bed. [The victim] stood up and struck Granata in the right shoulder with the knife.
86.There is footage of the stabbing of Granata by [the victim].
87.Granata and Peaston both woke up and screamed. Granata said ‘what the fuck’s going on?’ He and Peaston then began to review the webcam recording. [The victim] immediately began to cut her arms and her throat with a knife. When Granata and Peaston became aware of what [the victim] was doing they panicked and contacted 000. [The victim] tried to get as much blood from her body as she could and pleaded to be let die.
…
92.[The victim] was transported to hospital but in a different ambulance. Constable [N] travelled in the ambulance as well. Once inside the ambulance, [The victim] burst into tears and said to ambulance officer [LH] words to the effect ‘I am safe, thank you for saving me’. [The victim] initially refused to give any explanation for her current condition saying that she couldn’t tell [LH], he would kill her parents. A short time later she told [LH] that she was the victim of a kidnap 6 weeks earlier, that she was beaten with a meat tenderizer, having her hair pulled out, burns to her face and repeatedly having her nose broken. [The victim] also said that she had met Granata and Peaston one night through friends, they began to see each other and then they held her captive and made threats to her life, her family in Holland and her friends. She said that she had been fed methamphetamine, beaten and had sex with Granata and Peaston daily. [The victim] also told [LH] that she had attacked her kidnapper with a knife and stabbed herself multiple times in order to die because she thought she would never escape. [The victim] mentioned a knife in the vagina. Ambulance officer [DE] also heard some of the conversation between [LH] and [the victim]. Constable [N] made some notes of the conversation.
…
98.[The victim] underwent urgent surgery at the Royal Melbourne Hospital on 25 December 2012 to repair a laceration to her neck and muscle and tendon damage to her wrists. She also suffered from a left pneumothorax. A left intercostal catheter was inserted to treat the collapsed lung and removed the following day. CT scans were also performed on [the victim] on 25 December 2012.
99.[The victim] was examined by Dr Parkin on the afternoon of 26 December 2012 and certain medical swabs and samples were taken. Dr Parkin noted that [the victim] had 54 separate injuries to her head, neck, back, buttocks, chest, abdomen, each arm and each leg. These injuries included recent bruising, abrasions and linear wounds. Photographs were taken of [the victim]. Dr Parkin’s opinion was that the CT scan taken at the Royal Melbourne Hospital suggested an old fracture of the nose, which could have occurred up to five weeks or more beforehand. Photos were taken of [the victim]’s injuries.[2]

[2]Prosecution Opening (citations omitted).

In addition, upon a search of the respondent’s hotel room, police located 7.1 grams of cannabis L and 6.5 grams of substances containing methylamphetamine.

The objective gravity of the offending

On the plea hearing, the prosecution submitted:

Our submissions are that all of the offences committed upon [the victim] were committed in the context of serious violence being inflicted upon her or threats of death or serious violence to her or her parents. She was repeatedly raped [orally], vaginally and anally with a variety of objects, including a knife in an ongoing environment of escalating brutality over a period of almost two months. In our submission, this places the overall offending in the worst category of offending likely to be encountered in ordinary practice. The offences were abhorrent and completely transgressed the minimum standards of ordinary community behaviour. She was in constant pain, sometimes losing consciousness and often already obviously injured when further physical and sexual assaults were inflicted upon her. She was degraded and humiliated for no better reason than that he believed incorrectly that she was having sex with Peaston behind his back.
The offending has had a devastating and long-lasting impact upon her, as can be seen from the victim impact statement, and it can safely be predicted that she will remain affected by this for the rest of her life.
In short, the offences should be fixed at the highest end of the scale.

In turn, his Honour formed the view that the rapes and the intentionally cause serious injury were to be regarded as grave examples of the offences and that the offending overall must be viewed as falling in the worst category likely to be dealt with by the Court:

In relation to the victim, she provided the court with a victim impact statement, which was written and read out by her to the court. The statement and her reading of it brought important matters before the court which were presented in an impressive, measured and articulate way.
It is clear that the appalling treatment which you meted out to her has had a significant traumatic impact on her physical integrity and health, her psychological health, her social life, her academic and vocational prospects, financial aspects of her life and her general outlook for the future. She is hyper-vigilant, easily dissociates from situations she perceives as dangerous or difficult, she is anxious and experiencing depression. She is often assailed by triggering events and memories which leave her barely able to function, leaving her as a reclusive and frightened individual.
She particularly commented on the anger, rage and disgust she feels which is destructive of any positive life experience. Her relationships have been blighted and she has suffered loss of friendships. This experience has forced her to leave behind not just the small town she came from but also family and friends. The educational opportunities she sought in this country have been replaced by the need for ongoing treatment. She has post-traumatic stress disorder and an emotion regulation disorder. She has ongoing issues with her arm, which was damaged in order to effect her escape from your clutches.
The injuries you inflicted on her also remain painful. The many scars she has are a sad reminder of your abhorrent criminal conduct. The scars make it difficult for her to work in hospitality. Some of her favourite past-times are now denied her. She does not go out at night and is fearful of being alone. I take her statement into account.
It is difficult to imagine the terror experienced by [the victim] on an ongoing basis during the offending period. The images and recordings, which it has been my unfortunate duty to view, and made by you of some of these events, are harrowing evidence of the inhumane and cruel subjugation to which you subjected [the victim], by force. This is vile and repulsive behaviour which dehumanised your victim, rendered her little more than an object to serve your depravity and sexual gratification, an object to use and abuse at your will with complete disregard for her rights, her physical integrity and her humanity.
The court must denounce such wanton criminality in the strongest possible terms, in ways which satisfy the needs for the deterrence of you as an individual from such offending, deterrence of those like-minded who would offend in this way and the protection of the community.
In my view the circumstances of the offending in the first indictment indicate a high degree of criminality and moral culpability, making the rapes and the infliction of serious injury intentionally grave examples of these offences. You created an environment of fear and subjugation, bizarre and violent rules of behaviour so far removed from community standards which were imposed by force or threat of force in order to impose your will in what can properly be described as akin to torture over a protracted period.
Rape carries a maximum penalty of 25 years and intentionally causing injury 20 years. By these maxima the law emphasises that these are serious offences. Charges 1, 3, 8 and 10 of rape are constituted by single acts and remain serious offending. Charges 4, 5, 7, 9 and 13 are said to have been composite charges, that is a composite charge made up of penetrative conduct in effect involving multiple acts and ultimately representing criminality of a high order.
The threat to kill charges and causing serious injury charge in the context in which they occurred, are similarly serious example of multiple acts committed on the victim.
The intentionally causing injury count, Charge 14, is a rolled up count in effect, constituted by the sustained and regular violence inflicted on [the victim] over the relevant period. By agreement this was treated as a single offence with a 20 year maximum.
The offending involving, as it does, rape, serious violence and serious injury, including rape by knife must be viewed in the worst category likely to be dealt with by the court. Yours was a brutality which transgressed all community standards. The victim was in constant pain, lost consciousness, was often already injured when further violence was inflicted on her. She was degraded and humiliated, as is made clear by the footage. I agree with the prosecution that the theft of her personal items was designed by you to make more difficult meaningful contact with her family or outside help.
In my view there are aggravating circumstances to be considered. The use of weapons, including a screwdriver, a meat tenderiser, a vacuum cleaner pole, phone cable and a knife used on the rape victim to rape her vaginally as well as to cut a cross across her forehead, as well as being used for holding to her throat.

The victim was clearly a vulnerable 21 year old tourist with no close family or friendship ties here. A number of the events involved your girlfriend, Peaston. She was an obliging and scared accomplice but an agent who acted under significant duress. I have dealt with her previously.
[The victim] was routinely humiliated and degraded, made to sleep in the shower, penetrated by household items, filmed while naked and performing sexual acts, made to bark like a dog while bound and blindfolded, urinated on in the shower and denied nutrition. The duration and gravity of the offending not only reflects a measure of premeditation, but a clear understanding of the nature of the acts performed and an insidious persistence in the infliction of pain. Although the ice pipe seen in the footage provides one factor in the attempt to provide an explanation for the offending, in my view there is no reduction in moral culpability because the offending was ongoing, intentional and sustained. [3]

[3]DPP v Granata [2015] VCC 699 [59]–[72] (‘Reasons’).

Upon the appeal, counsel for the respondent pointed to certain aspects of the facts as demonstrating that the rape offences were not to be regarded as falling within the worst category of such offending.

I accept, as the sentencing judge did, that the rape offences in themselves are properly characterised as grave and that it is the combination of those offences as a whole, together with the serious violence inflicted upon the victim, which brought the respondent’s conduct within the ‘worst category’. As the trial judge found, the offending as a whole might properly be regarded as akin to torture over a protracted period.

The notion of the ‘worst category’ may be relevant to the sentencing task in the sense explained by the High Court in Veen v The Queen (No 2):

the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed.[4] That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.[5]

[4]Ibbs v The Queen (1987) 163 CLR 447, 451–2.

[5]Veen v The Queen [No 2](1988) 164 CLR 465, 478 (citation in original).

It is not submitted by the Director that each of the eight rape offences here in issue merited a sentence of 25 years’ imprisonment, as distinct from eight years’ imprisonment. What is put is that the penalty of eight years’ imprisonment for each offence was manifestly inadequate and that the total effective sentence of 17 years’ imprisonment was manifestly inadequate because, viewed cumulatively, the respondent’s criminality was in the worst category.

In this sense, it is not directly to the point that the individual rape offences might not be regarded as falling within the worst category of such offending. Nevertheless, the submissions made with respect to the relative gravity of the rape offences require a detailed response because they bear on the assessment of the Director’s complaints of manifest inadequacy.

First, it is submitted by the respondent that the victim was physically able to leave the room in which the rapes took place, that there was a telephone available and that she was left alone on occasions.

These matters were not pressed upon the plea and this is not surprising, for the following reasons.

(1) The agreed facts demonstrate that prior to the rapes the respondent assaulted the victim, told her on a number of occasions that he had killed many people, and cut her forehead ‘mark[ing her] for death’.[6]
[6]Prosecution Opening [12].

(2) The agreed facts concerning the period between 6 and 15 November 2012 include agreement that, during this period of time, the respondent made the victim believe that he would kill her family and friends if she did not do what he wanted her to do. It was agreed that the victim believed that if she tried to escape then the respondent would kill her family and friends.[7]
[7]Prosecution Opening [22]–[23].

(3) The victim’s admitted fear of the consequences of escape was reinforced by continuing assaults and further threats, humiliation and degradation.

(4) The extent of the deliberate intimidation of the victim is illustrated by the circumstances in which her belongings were stolen.

(5) The extent of the victim’s continuing fear of the respondent is corroborated by the video footage, to which counsel for the Director made specific reference on the hearing of the appeal.

(6) It is further corroborated by the ultimate course taken by the victim, namely stabbing the respondent and attempting to take her own life by cutting her wrists and throat.

Putting these matters together, the extent to which the respondent intimidated, terrified and dominated the victim makes the failure to lock the door and physically isolate the victim a consideration of little relevance. It is just as possible to isolate a victim with psychological control as with physical control.

This said, as the sentencing judge acknowledged in the course of the argument on the plea, the respondent did not fall to be sentenced on the basis that he had committed the offence of false imprisonment.

Next, it is submitted by the respondent that the victim engaged in some consensual sexual activity with the respondent. It is submitted that the mens rea of the respondent in respect of the rape offences is best conceived of as a failure to consider whether the victim was really consenting, despite her apparent consent which the respondent should have considered was the consequence of the victim’s fear.

Once again, this submission was not advanced on the plea. What was put below was that the respondent’s mental state was compromised during the period of the offending, by reason of the consumption of large quantities of methylamphetamine, resulting in an increasing level of paranoia.

In elaborating this position, defence counsel referred to a descent into ice-fuelled paranoia:

Because, your Honour, search in vain, otherwise, for any other explanation …

In my view, the following matters compelled the conclusion beyond reasonable doubt that the respondent knew that the victim was not consenting to the sexual penetrations constituting the rapes:

(d) the admitted making of death threats and confining of the victim by way of continuing threats;

(e) the continued violence inflicted upon the victim comprised of repeated assaults admitted in detail by the respondent;

(f) the admitted expressions of paranoid hatred of the victim by the respondent;

(g) the admitted circumstances of violence specifically accompanying each of the rapes;[8]
[8]See prosecution opening [16], [37], [46], [51]–[53], [63]–[66], [74], [76], [82]–[83].

(h) the specific admissions that the respondent ‘forced’ the victim to have sex with him;[9]
[9]See prosecution opening [37], [46], [52], [63], [64], [66], [74], [76], [82], [83].

(i) the admitted use of implements for the purpose of rape, culminating in the rape with the knife;

(j) the condition of the victim as depicted on the videos; and

(k) the admitted extent to which the victim was injured at the time of a number of the rapes.

Accordingly, the fact that the rapes were perpetrated in the context of a relationship which initially or on occasion involved consensual sexual activity does not, in my view, derogate from their gravity nor found any inference that the rapes were other than deliberately non-consensual.

Next, it is submitted by the respondent that the gravity of the individual rape offences, and the severity of the sentence imposed on each, falls to be considered in the context of the agreement between the Crown and the accused that the intentionally cause serious injury charge would embrace all assaults and the reflection of that agreement in the nine-year sentence imposed for it. It is submitted by the respondent that, when the assaults are disaggregated from the rapes, this supports the conclusion that the rapes were, relatively speaking, not in the worst case.

It may be accepted that the agreement (that charge 14 represented a composite series of acts covering all individual acts of assault committed against the victim during the episodes in question) gave rise to a need to ensure that there was no double punishment involved in the rape sentences. Nevertheless, the assaults upon the victim form part of a context in which the victim was raped. More particularly, taken together with the making of threats to kill and other threats of violence and the continuing domination, degradation and humiliation of the victim, the assaults were part of the context in which the respondent forced the victim to comply with his sexual demands.

The total circumstances in which the rapes were committed were relevant to an assessment of the suffering inflicted upon the victim by the rapes themselves and the psychological trauma they caused to her. The total circumstances were also relevant to the respondent’s culpability, in that they bore on the inference which might be drawn as to his state of mind at the time of the rapes, for the reasons that I have already explained. They were further relevant to the overall assessment of the need arising from the rape offences for specific deterrence, general deterrence, judicial denunciation and protection of the community.

Lastly, the objective gravity of the total offending was relevant to an assessment of the need for cumulation in respect of the individual offences.[10]
[10]Gordon v The Queen [2013] VSCA 343 [74] (Redlich JA).

It follows that, for the above reasons, none of the considerations advanced by the respondent as diminishing the relative gravity of the rapes leads me to conclude that the sentencing judge’s approach to the broad characterisation of their relative seriousness was in error. Nor was his Honour in error in concluding that the rapes, taken together and combined with the assaults, brought the offending as a whole into the worst category. The resultant question is whether the sentences imposed for the rapes adequately reflected their gravity and whether the total effective sentence imposed adequately reflected the cumulative criminality involved in the offending as a whole and its total impact upon the victim.

The personal circumstances of the respondent as put at the time of the plea

The respondent was born in Italy and came to Australia with his family as an infant. He was the eldest of three boys and grew up in Melbourne and Yarragon. He had an unremarkable childhood and adolescence. He successfully completed school to VCE level.

After leaving school, the respondent worked as a steel fixer but was injured when only 19 when an oxyacetylene bottle exploded in his face, causing serious burns.

Subsequent hospitalisation and resultant disability made it difficult for him to obtain steady employment. Pain management medication also appears to have led very quickly to the respondent’s self-medication with illicit drugs.

A report of 24 March 2015 from Dr Adam Deacon, psychiatrist, which was tendered on the plea, states that the respondent suffered a probably mild acquired brain injury in the workplace accident and subsequently developed a form of post-traumatic stress disorder (‘PTSD’) which required psychiatric intervention. Dr Deacon further stated that the respondent ‘seemed to have mostly recovered, although [was] still reminded of the accident on occasions’.

On the other hand, it seemed likely to Dr Deacon that the respondent developed a depressive disorder in response to the PTSD and that this was promptly masked by sustained poly-drug dependency involving the use of cannabis and methylamphetamine. Dr Deacon stated:

Prolonged methamphetamine dependency has likely coarsened underlying mild cognitive deficits attributable to the brain injury, and has also impacted on his mood and notably blunted affect observed in this assessment. He likely pre-morbidly functioned in the low-average intellectual range, and whilst not formally tested, seems to function at a lower level now.[11]

[11]Report of Dr Adam Deacon dated 24 March 2015, 5.

The respondent married and had three children but that relationship was destabilised by his chronic drug dependency.

By 2007, he had lost a business, his marriage had failed and drug use had led him to develop a transitory lifestyle. In this context, he moved into the hotel at Preston for accommodation. He formed a relationship with Ms Peaston some six years prior to the offending now in issue.

The respondent had a series of prior convictions, including one for recklessly cause injury in 2003 arising out of a road rage incident. In 2004, he was fined for drug offences and for offensive behaviour. In 2010 and again in 2011, he was fined for possession of a weapon. In 2012, he was convicted of possession of a weapon and of possession of a variety of drugs. On sentencing for the charges now in issue, Judge Gucciardo concluded that the respondent’s record was relatively limited, particularly as to violent or sexual offending.[12]
[12]Reasons [81].

His Honour further concluded that the respondent’s prospects of rehabilitation were guarded and were principally dependent on cessation of drug use.[13] This conclusion was not challenged on appeal. It accorded squarely with the evidence.
[13]Reasons [82].

His Honour noted that the respondent had not previously been in protracted custody.[14] He also noted that, whilst in prison, the respondent had required medication with antidepressant and antipsychotic drugs. He had also been placed in protective custody after being assaulted by other inmates and it was likely that he would continue to be kept there.
[14]Reasons [83].

On the plea, defence counsel disavowed reliance on Verdins[15] considerations. That position was adopted despite the respondent’s then need for medication. It may be inferred that it was informed by Dr Deacon’s report and, in particular, the following opinions:

(1) The respondent warranted ongoing psychiatric care in prison to ensure that he did not develop an enduring psychotic disorder secondary to chronic methamphetamine use.

(2) The respondent was, at the time immediately prior to sentence, coping adequately in prison despite having mental health issues. The respondent was likely to continue to manage reasonably well, despite some vulnerability.

[15]R v Verdins (2007) 16 VR 269 (‘Verdins’).

The sentencing judge took into account Dr Deacon’s report in sentencing and did so, in particular, in forming conclusions with respect to the nature of the respondent’s remorse, and his prospects of rehabilitation.

The statutory requirements governing an appeal by the Director

Sections 287, 289 and 290 of the Criminal Procedure Act 2009 relevantly provide:

287 Right of appeal—inadequate sentence
The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP—
(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b) is satisfied that an appeal should be brought in the public interest.

289 Determination of Crown appeal
(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
…

290 Orders etc. on successful appeal
(1)If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.
(2)If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.
(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

On appeal, this Court must thus determine:

(l) whether there has been an error in the sentence first imposed;

(m) if yes, whether a different sentence should be imposed; and

(n) if yes, what alternative sentence is appropriate.

The first issue logically requires an examination both of the reasoning towards sentence and the sentence itself.

The second issue raises the possibility that the residual discretion of the Court of Appeal not to intervene and resentence should be exercised.

The third issue gives rise to all the factors bearing on the discretionary exercise potentially involved in a sentencing decision, with the exception of double jeopardy.

Both the second and third factors need to be considered in the light of the circumstances existing at the date of the determination of the appeal.[16] It follows that a Director’s appeal may be subject to particular discretionary obstacles which do not confront convicted persons who appeal against their sentences.[17]
[16]R v Allpass (1993) 72 A Crim R 561, 562 (‘Allpass’); DPP v Karazisis (2010) 31 VR 634, 661–2 [121]–[122] (‘Karazisis’); Kentwell v The Queen (2014) 252 CLR 601, 618–9 [43] (‘Kentwell’).
[17]Karazisis (2010) 31 VR 634, 658 [103]–[104], 661–2 [119]–[123].

In DPP v O’Neill,[18] this Court made the following general observations about the framework within which appeals under these provisions must be considered.
[18][2015] VSCA 325 (‘O’Neill’).

First, the notion that Crown appeals should only be rare and exceptional as a result of the principle of double jeopardy no longer applies as a sentencing principle to which this Court must have regard under the present statutory regime.[19]
[19]Ibid [103]; Karazisis (2010) 31 VR 634, 661 [120].

Secondly, the Director may rely upon any of the types of error identified in House v The King.[20] It may be a specific error or it may be an error to be inferred from the fact that the sentence is outside the appropriate range.[21]
[20](1936) 55 CLR 499.
[21]O’Neill [2015] VSCA 325 [104].

Thirdly, in any event the error must raise a question of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards. This limiting purpose provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion as to whether the Court of Appeal should refuse to intervene.[22]
[22]Ibid [105].

Further, as Kiefel, Bell and Keane JJ observed in CMB v Attorney-General (NSW),[23] the limiting purpose of prosecution appeals may explain why they have been characterised as ‘exceptional’.
[23](2015) 89 ALJR 407, 421 [65].

In the present case, grounds 1 and 3 go essentially to the maintenance of proper sentencing standards. Ground 2 goes to an issue of proper sentencing practice for the governance and guidance of sentencing courts.

Ultimately, the parties have joined issue on the question of whether the penalties imposed for the rape charges individually, and the cumulation imposed in respect of such charges, were manifestly inadequate. It is not submitted that discrete issues bearing on the residual discretion arise. There are further issues, however, with respect to the appropriate penalties which should be imposed by way of resentencing should this Court be persuaded that that course must be followed.

[The respondent] reported that he used methamphetamine ‘extremely heavy’ during the six-week period he resided in the hotel with the two women. During this period he used up to two and a half grams of methamphetamine per day. He recalled smoking methamphetamine every half hour. He confirmed that he lost control of his use and he rapidly developed a dependency.
[The respondent] reported that he didn’t think he understood what impact the methamphetamine was having on him during the period of excessive use, but now when he reflected on his use he thought, ‘What was I doing ? – I can’t believe I allowed myself to fall into that trap’.
[The respondent] thought his use of amphetamine and methamphetamine had had an impact on his brain functioning, but he could not specify the nature of the impact.
[The respondent] continued to use cannabis, but in less amounts. He denied using hallucinogens, but he reported the two women used hallucinogens. He reported that he had not used hallucinogens, as he was ‘scared’ following reports that it had adverse effects.

When questioned by Dr Deacon about the offending, the respondent maintained that he had vague memories of the offending period. He did, however, recall feeling paranoid towards the two women involved. He recalled consensual sexual activity and said he was shocked by what he had seen of the video recordings. He denied a number of aspects of the agreed facts stated in the prosecution opening.

The respondent further told Dr Deacon that, whilst in custody, he had initially heard voices, but now only rarely heard them. The respondent denied being troubled by significant anxiety symptoms. His mood state was generally ‘OK’ and he was sleeping well. The respondent admitted accessing and using buprenorphine whilst in prison and was subsequently prescribed methadone.

Dr Deacon expressed the following opinion:

1.Mr Granata reported that he suffered a frontal brain injury from a workplace explosion in 1986. There have been no medical reports provided to corroborate this history. Whilst accepting that he was subject to an explosion resulting in serious injuries, it is less certain that he specifically experienced a frontal brain injury, although this is entirely possible.
2.Izabela Walters conducted neuropsychological testing on Mr Granata in March 2015. The key findings included:
a)Low Average general cognitive ability that was somewhat lower than his pre-morbid ability
b)Low Average verbal reasoning
c)Average non-verbal reasoning
d)Low-Average working memory
e)Borderline processing speed
f)Low-Average memory for verbal and visual information — memory structures are likely intact but difficulty in effective encoding and retrieval of information
g)No indications of executive dysfunction — no significant impulsivity or perseveration, normal ability to plan, shift attention and adjust behaviour

These findings confirm that Mr Granata likely experienced a mild lowering of overall cognitive ability compared with his pre-morbid functioning prior to the workplace injury. It would seem important to recognise that his frontal-executive functioning was examined to be normal, and therefore not consistent with a frontal brain injury, or perhaps this component of his cognitive functioning improved overtime.
3.Mr Granata has provided subtly inconsistent accounts of his drug use history to the multiple clinicians involved in assessment overtime [sic]. He has clearly been cannabis dependent since his late teens. He consistently used amphetamine from his late teens up until transitioning to methamphetamine in or around 2008. He has a history supportive of both amphetamine and methamphetamine dependency, although there appears to have been periods when he didn’t use these drugs, but followed by relapses back into dependent patterns of use. He reported to have used significantly more methamphetamine during the offending period in 2013 in extraordinary quantities of up to 2.5 grams per day. He reported that he was effectively persistently smoking methamphetamine throughout the day, every day. He was presumably significantly intoxicated with methamphetamine during this period and also in the grips of a marked dependency.
4.Methamphetamine is a potent, addictive psychostimulant that has dramatic effects of [sic] the central nervous system. Scientific literature includes reviews of the acute and chronic effects of methamphetamine on brain functioning. A comprehensive review article (Neurocognitive Effects of Methamphetamine: A Critical Review and Meta-Analysis, J Cobb Scott et al, Neuropsychological Rev (2007): 17:275-297) has been obtained to provide supportive evidence for the likely effect methamphetamine had on Mr Granata’s brain functioning. During a binge a range of desired cognitive and emotional effects including euphoria, enhanced energy and alertness and increased libido. Progressively heightened anxiety, insomnia, paranoia and hallucinations can occur. Irritability, aggression and violence are recognised as possibly associated but poorly understood sequelae. It has been difficult to interpret literature relating to the acute cognitive effects due to differing dose regimens. Methamphetamine is neurotoxic, and chronic use is associated with detrimental effects of neurotransmission (especially dopamine depletion) as well as the neural structure and function of some brain circuits. Methamphetamine dependence is associated with moderate neuropsychological impairment, with the largest impairments in episodic memory, executive function and information processing speed.
5.Mr Granata’s impaired brain functioning based on neuropsychological testing could therefore be explained by the combination of brain injury secondary to the workplace injury in 1986, but equally, or possibly more attributable, to the chronic neurotoxic effects of amphetamine/methamphetamine use over a twenty-plus year period.
6.Mr Granata reported that he experienced Post Traumatic Stress Disorder symptoms subsequent to the workplace accident in 1986 leading to psychiatric treatment including prescribed medication Sertraline. His symptoms have included anxiety, including episodes of panic, typically triggered by reminders of the accident, including gas smells and hissing noises. He has also been afflicted with flashbacks and nightmares of the accident. Whilst I consider it reasonable to accept that Mr Granata’s PSTD has been chronic, it seems likely that his symptoms have gradually abated and the frequency of experience of PTSD symptoms to have substantially reduced overtime [sic], but not completely resolved. Confounding Mr Granata’s clinical picture is his amphetamine and methamphetamine use; substances recognised to evoke and exacerbate anxiety. He mentioned that following the brain injury in 1986 that he then commenced experiencing ‘fits of rage’, but I note he also used amphetamine around this time period that could equally explain these sudden mood changes.
7.Mr Granata was so significantly intoxicated with methamphetamine during the offending period that his PTSD symptoms were likely to have been largely masked. Mr Granata reported to be largely amnestic for the offending period, perhaps partly consistent with the level of intoxication, and associated problems with memory formation, but as mentioned in the previous report, I think it is likely that psychological defences, including denial and suppression, are germane. There is no clear evidence that PTSD was present during the offending period, and even if present, would not have had any direct contribution to the offending. His PTSD symptoms historically made him feel anxious, not aggressive and violent.
8.Mr Granata’s cognitive impairment is likely to have developed as a result of the combination of head injury in 1986 and chronic amphetamine/methamphetamine use/dependence. It is possible, but purely speculative, that his underlying impaired brain, as a result of the primary brain injury in 1986, was more impressionable to the neurotoxic effects of amphetamine/methamphetamine compared with a healthy brain. Furthermore, a similar contention could be raised that his mildly impaired brain was more susceptible to the effects of methamphetamine during the six week period of gross intoxication, compared with a healthy brain. These theoretical notions are not scientifically based, but rather based on feasible clinical impression.
9.Mr Granata maintains that his memory for the six week period is incredibly limited and piecemeal. As mentioned earlier, I do not accept that his purported memory deficits can be entirely explained to be a result of his chronic mild brain impairment and acute intoxicating effects of methamphetamine, as psychological defences appear to have also been active. Mr Granata maintains that he cannot recall engaging in any of the offending behaviour, yet he can recall engaging in consensual sex, including some unconventional practices. Even when shown a still shot of the offending behaviour in the recent assessment he reported to have not had any memory of the offending. He also maintains that he cannot recall attending the [medical clinic] with [the victim] on 20 November 2012. The Prosecution Opening document pertaining to this aspect of the offence history (point 38) suggests at the time of attending the medical clinic he was able to recognise that he caused the injuries, as he told [the victim] to lie in order to protect him from being perceived to be the perpetrator. Furthermore, when interviewed by the police he lied that he had not engaged in any offending behaviour when it can be reasonably assumed he would have remembered at least some aspects of the offending given it occurred within close proximity of the interview.
10.Mr Granata reported that he recalled experiencing paranoia directly relating to the two women, even though he reported he couldn’t remember other aspects of his experience and related offending behaviour around the same time period. He likely experienced paranoia secondary to the effect of methamphetamine, as is commonly recognised. He felt suspicious, insecure and jealous. These feelings likely contributed to engendering hostile feelings and associated aggression and violence. Mr Granata denied being sadistically oriented in the past.
11.Mr Granata has experienced mental problems in prison. His report of initially hearing the voice of [the victim] may have reflected Mr Granata working through the gravity of his offences, but given that he has also reported additional persistent voices up until about one year ago, it most likely reflects the enduring impact of chronic methamphetamine use prior to his arrest. Whilst I have not received the Justice Health file to clarify the quality of his presentation in prison, he does not present with signs suggestive of schizophrenia. Whilst he appears to have been coping adequately, it can be anticipated that he might experience prison as more onerous that a person of stable mental health.

No request was made by either party on the appeal to call Dr Deacon to give oral evidence and question him about any aspect of his reports.

In my view, Dr Deacon’s supplementary report explains the mental factors affecting the respondent at the time of the offending more comprehensively and convincingly than the opinion of Dr Walton. Key considerations are:

· There is no medical record or report of frontal brain damage made at the time of the industrial accident;

· The neuropsychological testing does not demonstrate frontal brain damage or relevant impairment of executive functioning;

· The limitations which the respondent does suffer from in terms of neuropsychological function are as likely, if not more likely, to be attributable to long-term drug abuse as to injuries suffered in the industrial accident;

· The level of drug use by the respondent at the time of the offending was extraordinarily high, and he may be presumed to have been heavily intoxicated;

· There is no evidence that he suffered from symptoms of PTSD at the time of the offending;

· It is probable that the respondent suffered from paranoia and associated aggression as a result of methylamphetamine use at the time of the offending.

Following receipt of Dr Deacon’s supplementary report and the submissions made by the Director in respect of it, the respondent’s counsel sought the further opportunity to obtain a report from a neuropsychologist other than Dr Walters. The Court granted that leave on 25 May 2016.

Martin Jackson, a clinical neuropsychologist, saw the respondent on 1 June 2016 and subsequently provided a written report by way of neuropsychological assessment.

Mr Jackson took a history which was substantially consistent with that obtained by Dr Deacon. He considered the available medical, psychological, psychiatric and neuropsychiatric reports. He undertook a mental state examination of the respondent and administered a comprehensive set of neuropsychological tests.[60]
[60]Wechsler Test of Adult Reading (WTAR); Wechsler Adult Intelligence Scale 4th Edition (WAIS-4); Wechsler Memory Scale 3rd Edition (WMS-3) – Logical Memory; Spatial Learning Test; Trail Making Test; Rey Figure; Controlled Oral Word Association Test; Stroop Test; Test of Memory Malingering (TOMM); Depression, Anxiety and Stress Scale (DASS).

Ultimately, Mr Jackson relevantly concluded:

(1) Overall the respondent is a man of estimated average cognitive abilities with intact (average or better) basic language skills, most aspects of verbal and perceptual general intellectual functioning, and most aspects of executive functioning.

(2) The respondent does demonstrate mild impairment of working memory skills and moderate to severe impairment of processing speed and high level attention. These impairments have a secondary effect on his ability to learn and remember new information.

(3) There has been a mild but significant deterioration in his processing speed and memory skills since he underwent neuropsychological testing by Dr Walters. This deterioration is probably due to a deterioration in mood whilst in custody, resulting in extremely severe depression and extremely severe anxiety.

(4) The respondent suffered PTSD and consequential anxiety and depression following the 1986 workplace accident.

(5) In this context, the respondent commenced using cannabis and amphetamines to assist with pain and emotional difficulties.

(6) The respondent used high levels of cannabis and amphetamines on a daily basis for over 25 years together with methylamphetamine since the breakup of his marriage in 2007–8. He suffers from a substance abuse disorder.

(7) The respondent did not suffer any psychotic or delusional symptoms prior to the period of the offending in 2012.

(8) The respondent suffered from a range of psychotic symptoms and delusions at the time of the offending. Given the extent of his drug use, which was up to 2.5 milligrams of methylamphetamine per day together with other drugs, it is likely that the respondent suffered from a drug-induced psychosis at the time of the offending.

(9) Long-term use of methylamphetamine is also associated with a range of cognitive impairments and is likely to have significantly affected the respondent’s cognitive abilities.

(10) There is no convincing evidence of an acquired brain injury arising out of the accident in 1986.

(11) It is far more likely the respondent has suffered from ongoing problems with cognition due to a combination of significant mood disorder and heavy drug use.

(12) The primary cause of the respondent’s current problems is ongoing mood disorder, which may be capable of treatment.

(13) The respondent’s behaviour at the time of the offending is completely consistent with the psychotic behaviour seen in association with severe methylamphetamine intoxication.

(14) The respondent’s claimed loss of memory with respect to the events involved in the offending is consistent with the effect of the combination of the daily consumption of 20 milligrams of Valium, prescribed antidepressant medication and heavy illegal drug use.

(15) At the time of the offending, the respondent was subject to the effects of a drug-induced ice psychosis, which affected his ability to think clearly and rationally, and control his emotions. This was the ‘primary contributor’ to his behaviour.

(16) It is highly likely the respondent’s psychotic condition could reoccur if in the future he returns to the use of cannabis, amphetamines or methylamphetamines.

(17) The respondent will find imprisonment more difficult than a person not suffering from his ongoing problems with anxiety and depression. The appeal proceeding has led to an increase in anxiety and a decline in his mental health. The respondent’s cognitive deficiencies also increase the likelihood of conflict with others within the prison environment.

(18) The respondent’s prospects of rehabilitation are directly linked to the avoidance of a return to the use of illicit drugs.

(19) The respondent demonstrated ‘significant remorse’ to Mr Jackson.

It can be seen that this further report from the second neuropsychologist substantially confirms and supports Dr Deacon’s opinion, although it is not entirely coincident with it.

Not surprisingly, in the face of Mr Jackson’s report and the evidence as a whole, the respondent now concedes:

(x) a simple ‘Verdins[61] one’ calculation is difficult to justify, ie, it cannot readily be concluded that the respondent suffered from impaired mental functioning which reduced his moral culpability at the time of the offending; and

(y) it is difficult for the Court to attribute any particular weight to the role of acquired brain injury affecting the respondent at the time of the offending.

[61]Verdins (2007) 16 VR 269, 276 [32].

These concessions are properly made. There is, in my view, no substantive basis on which it could be concluded on the balance of probabilities that either the acquired brain injury claimed on behalf of the respondent or his PTSD were materially operative at the time of the offending.

There is, as Dr Deacon, Dr Walters and Mr Jackson conclude, no convincing evidence that at the time of the offending the respondent was relevantly suffering from an acquired brain injury caused by the industrial accident. Nor is there any evidence that he was affected by PTSD.

Rather, the evidence demonstrates overwhelmingly that the respondent’s behaviour was dominated by the effects of the ingestion of illicit drugs and that these drugs precipitated paranoid delusions and heightened the respondent’s sexual drive and aggression. This of course is the basis on which the plea was put to the sentencing judge.

Moreover, if, contrary to the view of Dr Deacon, Dr Walters and Mr Jackson, the respondent was relevantly suffering from a long-term acquired brain injury at the time of the offending and the mechanism by which the acquired brain injury is said to have reduced the respondent’s moral culpability is understood to be increased susceptibility to the adverse side effects of methylamphetamine (as Dr Walton maintained in cross-examination and Dr Deacon recognises is possible), then it must be recognised that, by the time of the offending, the respondent had been using methylamphetamine for some 10 years. The trigger for the increased aggression, sexual drive and paranoia produced in the respondent was the illicit drug use of a very experienced drug user. In addition, the offending continued after the respondent must have been aware that he was exhibiting high levels of aggression, sexual drive and paranoia. As the sentencing judge said, the offending was ongoing, intentional and sustained. The effects of illicit drug use in these circumstances cannot reduce the respondent’s moral culpability.

A consequence of the concessions now made by the respondent as to the potential application of Verdins[62] is that the respondent’s case is not now put on a basis which is substantially inconsistent with that upon which the plea at first instance was advanced.[63]
[62](2007) 16 VR 269.
[63]Cf Betts v The Queen (2016) 90 ALJR 758.

In these circumstances, the Director submits that only the supplementary report of Dr Deacon dated 26 April 2016 should be received as fresh evidence on the appeal. I would reject that submission. First, the additional material is admissible as informing the extent to which (as is now admitted) the burden of imprisonment upon the respondent will be unusually heavy. Secondly, upon a Director’s appeal, the Court should not ordinarily close out a respondent from adducing evidence bearing on the proper and full evaluation of the respondent’s relevant personal characteristics. In essence, the respondent now seeks to do no more than amplify the material bearing on the appropriate resentence in a limited way.

Counsel for the respondent further submits that:

(z) the respondent’s memory shortcomings should be regarded in part as explaining and hence reducing the moral culpability inherent in the repetitive and extraordinarily extended nature of the offending; and

(aa) the respondent has a string of ‘pitiable characteristics’ which call for clemency even if no causal role can be attributed to the effects of his workplace injury and subsequent problems.

I do not accept that Mr Jackson’s report or any other aspects of the evidence establish a proper basis for concluding that memory shortcomings materially contributed to the offending.

(1) Mr Jackson’s report makes clear the respondent’s current condition is in this respect materially worse than that identified by Dr Walters.

(2) Dr Walters found that there was no loss of executive function, no significant impulsivity or perseveration, normal ability to plan, shift attention and adjust behaviour. I accept that she was correct to conclude that it could not be inferred that the respondent’s cognitive function was a factor in his offending.

(3) Dr Deacon also shared this view and, in my opinion, this view is directly supported by the following considerations:

(i) the offending was protracted rather than impulsive. It involved episodes of deliberate and careful manipulation of the victim. These included:

·continuing and consistent threats to kill the victim and her family;
·calculated, cumulative humiliation and torture of the victim;
·persuading the victim to provide a false explanation for her injuries to a doctor;
·making a telephone call in the victim’s presence, involving the supply of the personal details of the victim’s parents, in order to reinforce the threat that he would kill the victim if she did not co-operate with him;
·standing guard over the victim when police attended the hotel room making enquiries in relation to a car accident; and
·orchestrating the theft of the victim’s belongings.

(ii) there is no overt evidence that the respondent was affected by cognitive difficulties (or symptoms of PTSD) during the offending. In particular, no such evidence has been identified by reference to the video tapes.

Next, it should be noted that Mr Jackson’s report attributes memory loss in significant part to illicit drug use. The respondent cannot obtain benefit from this. If it cannot be shown, on the balance of probabilities, that he has suffered memory loss as a result of acquired brain injury, memory loss cannot be said to involve a relevant potential cause ameliorating culpability.

In summary, I do not accept either that it can be inferred that difficulties with memory materially contributed in any way to the offending, or that such difficulties as the respondent may have had in this respect at the time of the offending can be said to have resulted from anything other than extended high levels of illicit drug use.

Insofar as it is submitted that the respondent has a series of pitiable characteristics which call for clemency, it is necessary to evaluate the history of the consequences of the respondent’s workplace injury.

In this regard, it may be accepted that PTSD contributed materially to ongoing long-term problems with anxiety and depression. These problems are directly relevant to the probable burden of imprisonment upon the respondent and the evidence now available upon resentencing establishes that this is a material consideration.

In terms of his present circumstances, I accept that the respondent suffers from ongoing depression. He is taking tranquillisers, namely Seroquel and Risperidone, together with an antidepressant, Zoloft. He has also required a 25 milligram daily dose of methadone due to his admitted use of buprenorphine whilst in prison. Whether his fundamental problem is regarded as one of continuing PTSD or of drug addiction, I accept that in his current state, and taking into account that he is kept in protective custody, he is likely to experience prison as more burdensome than the average prisoner.

It may also be accepted that the respondent’s history of chronic drug abuse originated in the context of his post-accident conditions of pain, depression and anxiety.

However, that drug use was relevantly persisted in by the respondent in the face of the obvious suffering of the victim during the protracted offending which is now in issue. The fact of the drug use may be regarded as explaining to some extent the horrific extent and brutality of the offending, but it cannot be regarded as materially reducing the respondent’s moral culpability.

Moreover, the opinion evidence from the psychiatrists and psychologists now available strongly supports the proposition that there is a real risk of further offending if the respondent returns to using cannabis, amphetamines or methylamphetamines. In this way, the evidence as to the role of drug use in the current offending substantially fortifies the significance of specific deterrence and the protection of the community as critical sentencing considerations in this case.[64]
[64]Wright v The Queen [2015] VSCA 333 [54].

The evidence is that the respondent has used illicit drugs for some 30 years or so and that, by the time of the offending, the level of this use was extraordinarily persistent and high. I hold very low expectations with respect to the respondent avoiding a return to illicit drug use in the long term. The sentencing judge was correct to conclude that the respondent’s prospects of rehabilitation are ‘guarded’.

Finally, it is submitted on behalf of the respondent that his personal history is such that it moderates the extent to which he can be regarded as an appropriate vehicle for general deterrence.

I do not accept that this is so. Users of illicit drugs are themselves a class of persons to whom general deterrence must be directed. The dominant drug-fuelled character of the offending in the present case coupled with its extreme and depraved nature makes this a case pre-eminently suited to the application of notions of general deterrence.[65]
[65]Ibid [67].

Conclusion

The Director has established error in respect of the individual sentences imposed on eight of the rape charges. In my view, it was not reasonably open to impose sentences of only eight years’ imprisonment with respect to these charges. Moreover, there is no discretionary reason standing in the way of the imposition of appropriate penalties.

The Director has also established error in the orders for cumulation imposed in respect of the rape sentences. These orders were also below the range reasonably open to the sentencing judge. Likewise, there is again no discretionary reason why orders for appropriate cumulation should not now be made.

Although I agree with the Director’s submission that it is difficult to conceive of much worse examples of offending of the kind in question, I am mindful of the observations of Hayne J in Ryan v The Queen,[66] that emotions which offending of this kind evokes must be put aside. Repugnance for the offender and sympathy for the victim cannot be allowed to cloud the Court’s vision. Sentencing principles, in general, and the Sentencing Act 1991, in particular, demand that I balance against the enormity of the respondent’s offending such mitigating factors as there may be. The respondent must be granted an appropriate level of discount on sentence in recognition of his pleas of guilty. The Court should also strive to avoid the imposition of a crushing sentence so that the sentence facilitates a realisation of his prospects of rehabilitation.
[66](2001) 206 CLR 267, 306 [133]–[134].

Giving due weight to the principle of parsimony and taking into account all the circumstances which I have identified above, including the respondent’s pleas of guilty and his present condition in prison, I would resentence the respondent to 10 years’ imprisonment on each of charges 3, 4, 5, 7, 8, 9, 10 and 13.

I would maintain charge 13 as the base sentence.

I would cumulate one year’s imprisonment in respect of the sentences imposed upon each of the rape charges other than the base sentence, being charges 1, 3, 4, 5, 7, 8, 9 and 10.

I would otherwise confirm the sentencing orders made, including those made under the Sex Offenders Registration Act 2006.

These conclusions result in a total effective sentence of 23 years’ imprisonment, having the components set out below:

Indictment D10391034.2
Charge	Offence	Maximum		Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]		8 years	1 year
2	Theft [Crimes Act 1958 s 74(1)]	10 years [Crimes Act 1958 s 74(1)]		9 months	3 months
3	Rape	25 years		10 years	1 year
4	Rape	25 years		10 years	1 year
5	Rape	25 years		10 years	1 year
6	Make threat to kill [Crimes Act 1958 s 20]	10 years [Crimes Act 1958 s 20]		3 years	6 months
7	Rape	25 years		10 years	1 year
8	Rape	25 years		10 years	1 year
9	Rape	25 years		10 years	1 year
10	Rape	25 years		10 years	1 year
11	Make threat to kill	10 years		3 years	6 months
12	Threat to inflict serious injury [Crimes Act 1958 s 21]	5 years [Crimes Act 1958 s 21]		18 months	3 months
13	Rape	25 years		10 years	Base
14	Intentionally causing serious injury [Crimes Act 1958 s 16]	20 years [Crimes Act 1958 s 16]		9 years	3 years 6 months
Indictment D10391034.D2
Charge	Offence	Maximum	Sentence		Cumulation
1	Possess a drug of dependence – methylamphetamine [Drugs, Poisons and Controlled Substances Act 1981 s 73]	5 years [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(c)]	6 months		—
2	Possess a drug of dependence – cannabis L	5 years	6 months		—
Total Effective Sentence:		23 years’ imprisonment

Having regard, in part, to the respondent’s age and the potential capacity to monitor and supervise his abstinence from illicit drug use on parole, if parole is granted, I would impose a non-parole period of 17 years.

I would declare pursuant to 6AAA of the Sentencing Act 1991 that, but for the respondent’s pleas of guilty, I would have sentenced him to 27 years’ imprisonment and fixed a non-parole period of 21 years.

I would direct pursuant to s 6F of the Sentencing Act 1991 that it be noted in the records of the Court that the respondent was sentenced as a serious offender in respect of charges 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.

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[2016] VSCA 190

8 August 2016