DPP v Kavanagh

[2020] VCC 651

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02208

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE KAVANAGH

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2020
DATE OF SENTENCE:	20 May 2020
CASE MAY BE CITED AS:	DPP v Kavanagh
MEDIUM NEUTRAL CITATION:	[2020] VCC 651

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A McKenry	Office of Public Prosecutions
For the Accused	Mr L Richter	Matthew White and Associates

HER HONOUR: 

1Shane James Kavanagh, a jury has found you guilty of one charge of rape and one charge of intentionally causing injury.  You were found not guilty on three charges of rape, they being Charges 1, 2 and 4 on the indictment.  You were also found not guilty of recklessly causing injury, being Charge 6, which was an alternative to Charge 5, the charge of intentionally causing injury, of which you were found guilty. 

2The facts underlying your offending are as follows:

3The victim of the rape and assault was LD, with whom you had a brief relationship in about May of 2018.  The two of you met through the dating application, Tinder.  Things developed very quickly.  You first made contact on 25 April 2018 and that day, went over to the complainant's house, meeting her father, the two of you kissing and cuddling and then watching Netflix. 

4The next day, 26 April, you went to the complainant's house, where you had dinner, then watched Netflix and engaged in consensual sex.  After this, the two of you began to see each other regularly, you staying over at her house and speaking most days, either in person or via social media. 

5From 14 May 2018, you stayed at the complainant's house every night, last having consensual sex with her on Wednesday 16 May 2018. 

6At about 11 am on Thursday 17 May, the two of you smoked cannabis and that night, you had some alcohol.  The complainant said you became more boisterous as you consumed the alcohol and the two of you then had a conversation about your ex-partner and as the conversation progressed, according to LD, you became angry. 

7Ultimately at one stage, LD got up to go to the toilet and while she was there, you came in, so she returned to the bedroom.  She got dressed whilst alone in the bedroom, wearing a black singlet, blue tracksuit pants and underwear.  You returned to the bedroom from the toilet and got into bed with the complainant and tried to put her close, but she pushed you away.  You then struggled and when LD tried to move away, you hit her in the face with your hand and she begged you to please stop. 

8A short time later, you told LD that you were “horny” and ripped off her black singlet, pulling it forcibly from behind.  The singlet ripped and LD felt a pain near her right armpit, later noticing a large cut under her right arm.  You pulled her pants and underwear off, lay on top of her and inserted your penis into her vagina.  Those actions underlie Charge 3 on the indictment, rape, of which you were found guilty. 

9Whilst penetrating LD, you continued to hit her in the face.  She said she began having a panic attack and had trouble breathing.  She told you to get off, but you continued penetrating her until you ejaculated in her vagina. 

10The charge of intentionally causing injury was the subject of some discussion between myself and counsel.  It was the prosecution's submission that I should regard that verdict as a finding that you had undertaken a wider variety of violent acts against LD than that confined to the rape, of which you were found guilty.  I will refer to that scenario and my conclusions later in these sentencing remarks.

11I now turn to the victim impact statement of LD.  Understandably, this rape has had a significant impact upon her.  She has been diagnosed with depression, anxiety and PTSD.  She stated that she feels suicidal and soon after this crime was committed against her, was admitted to an inpatient mental health ward.  She described experiencing flashbacks and nightmares from the assault.  She said she lived with constant anger, psychological pressure and tension.  She has developed self-hatred.  She also feels scared at home in her house.  She also feels too scared to leave the house by herself.  She finds it hard to trust or feel safe around family and friends. 

12She said she received bruises and injuries and indeed, during the trial, photographic evidence was tendered showing considerable bruising to
LD’s body and a particularly concerning and large bruise around her eye and ear.  She said that she has difficulty finding work, or cannot get work as a result of this assault.  She concluded, 'The assault has stolen my freedom to experience and be involved in a life that I would choose and want.'  She describes being unable to go out in public spaces, unable to apply for work, to catch public transport, a fear of crowds, feeling unsafe and a loss of independence, stating she has become increasingly reliant on her father and partner to complete domestic tasks.  She now struggles trusting people.  She said she stayed at home most of the time and this has caused her to lose friends and family members that she cared about.  She concluded, 'I am struggling with learning how to enjoy what I loved before the assault.'

13The reactions by LD to the sexual assault and violent sexual assault you perpetrated on her, are entirely in line, unfortunately, with the impacts described by many, many other victims of rape, to this court.  It can only be concluded, she will continue to struggle with the psychological aftermaths of your offending against her and that they will continue for some time.  I repeat that I am satisfied that your offending has had a serious deleterious effect upon LD.

14I now turn to your personal circumstances. You are 31 and presented to this court with no prior criminal history.  You are the younger of two sons born to your parents and it would seem you enjoyed an unremarkable and pro-social upbringing.  You completed Year 11 in Williamstown and when you left school, began and completed a plumbing apprenticeship, working in that area for 10 years, for the past three to four years, concentrating on installing air conditioning systems in new estates. 

15You began using cannabis as a teenager, although it was not a problem for you, which progressed to the use of party drugs and ultimately progressed unfortunately to the use of methylamphetamine.  This, it would seem, over the years, became an addiction for you.  I refer to a letter written by your father, Michael Kavanagh, who described you turning into a person, who as a result of your continued use and continuous use of methylamphetamine, who developed the usual psychological problems that go with Ice use, that is, depression, lethargy, secrecy.  Your father stated you changed from 'a happy - a cheerful happy man to one who had a very unhealthy outlook on life.'

16You had formed a relationship in your earlier 20s with a woman, by whom you had a son, Oliver, who is now four or five, but as your father stated, 'As his drug taking continued, the relationship disintegrated.  His partner returned to her family with Oliver.'  You then used methamphetamine even more, although you had access to your son every second weekend, ensuring that you did not use in front of him.

17Your father continues, 'Shane's depression increased and he began taking time off work, resulting in losing his job.'  Your father stated that you, 'went downhill very fast after this, with much use of methamphetamines, crack and other drugs.  He became the complete opposite of the person we knew and loved, not listening to our advice or guidance.  He became paranoid, extremely distressed and suicidal.'

18It would seem, given your prior pro-social history and unremarkable and positive upbringing, that drug use lies behind this offending.  In saying this, I in no way, seek to trivialise the offending in which you engaged, nor do I regard your drug use as an excuse for it.  I do note that there was mention on the night of your engaging in use of methylamphetamine.  I mention it only as a contextual factor, which as I have said, goes some way to finding why you offended in this violent way, which you had never done previously. 

19Following you being charged in relation to this offending, you were remanded in custody between May and October of 2018.  During that time, your son visited you, but once your former partner discovered the facts scenario underlying your charges, she ceased allowing you to have contact with your son, Oliver.  You have now not seen him since October of 2018.  At that time, you obtained bail, but continued to use drugs. 

20Ultimately you were breached on bail in relation to minor unrelated charges, they being driving charges and possession of cannabis.  At this point in time, your counsel has informed me you recognised that your drug problem was out of your control and you decided not to apply for bail.  You were remanded in custody and have remained there ever since. 

21It appears you have done all the available courses available to you in custody on remand, including cannabis and methamphetamine courses and occupational health and safety courses.  Whilst in gaol, you worked in a metal shop, attended the gym and library and were undertaking an engineering course.  All of this ended with the onset of COVID-19.  Those programs are no longer available to you, nor is the library or the gym. 

22More concerningly for you, it has meant your parents, who have remained supportive of you, have been no longer able to visit you in gaol.  This is a particular concern, as your mother was diagnosed with what is thought to be terminal cancer seven years ago.  She appears to have defied the odds, but according to the letter she wrote to the Court, the cancer is spreading slowly but surely and I accept that it is an anxiety for you that you may never see your mother personally again.  Currently you are having contact two to three times a week via Skype and telephone.

23You work in gaol as a floor polishing billet.

24As I have said, the prosecution submitted that Charge 5 should be read as a verdict relating to all the violence allegedly perpetrated by you on the complainant accompanying all three other incidents of rape, of which she alleged, but of which you were found not guilty.  I am unable to accept that submission from the prosecution. 

25In my view, if the jury verdict on Charge 5 represented the entirety of the violence which the complainant alleged you perpetrated upon her across other incidents of rape, then logically a jury would have found you guilty of those rapes.  The prosecution very fairly conceded it was open to me to find that Charge 5 related to the violence perpetrated by you on the complainant in relation to Charge 3 and I do this.  The prosecution further submitted that I should find that this offending fell within the mid-range of seriousness applicable to charges of this kind. 

26The maximum penalty for rape is a period of twenty-five years.  The maximum penalty for intentionally causing injury is 10 years.  As a result of amendments to the Sentencing Act, the charge of rape now attracts a standard sentence of 10 years for sentences which fall into the mid-range category.  If I were to categorise your offending as falling in the mid-range, that is the sentence I would have to impose. 

27The prosecutor, in support of his submissions, pointed to the vulnerability of your victim, who was smaller and weaker than you, the fact that her father, who had a disabled health condition and hearing loss, was present in the home added to her anxiety.  It was his submission that your actions were aggravated by violence.  On the other hand, your defence counsel pointed to your lack of prior convictions, the fact that you continued to enjoy the support of your parents and he submitted that you had good prospects of rehabilitation.  Providing you deal with your drug use (and I am impressed by your decision to remain in custody, because of your realisation that you were not dealing with your drug problem properly) your prospects of rehabilitation are good and that you are unlikely to present any danger to the community. 

28The Court of Appeal has made it clear that the issue of standard sentencing is but another factor to be taken into account by a sentencing court.  It is my view that the mitigatory factors in your case are such that I should not find that this offending falls into the mid-range of seriousness of offending applicable to this charge.  In doing so, I hasten to add that, clearly anyone who commits a rape, has committed a very serious offence and of course there was no submission that I should deal with you in any way, other than by a term of imprisonment.

29You did not plead guilty in this case and you are not entitled to the utilitarian mitigatory factor of a plea of guilty.  Nevertheless, I do take into account your positive previous work and social history.  I take into account the positive and pro-social persons who exist in your life and I am satisfied that your time in gaol has been used usefully by you.  You are a qualified tradesman who I have said, as long as he attends to his drug use, has good prospects for employment. You have accommodation and good support waiting for you on your release from gaol.

30As I have already stated, the charge of rape, however, is an extremely serious one.  It is a degrading offence.  It involves oppression and suppression on your victim.  It involves violence and it inevitably results in psychological harm of a significant and long-standing nature and indeed, that is the case here.

31The fact that it was accompanied by violence makes the scenario an even more horrendous one.  The gravity of your offending, whilst not leading me to the scenario where I have decided that a standard sentence should apply, nevertheless, has led me to the conclusion that a term of imprisonment not greatly below that is appropriate in your case. 

32On Charge 1, I sentence you to six and a half years' imprisonment.

33On Charge 2, I sentence you to 12 months' imprisonment.

34I order that three months of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1, making a total effective sentence of seven years.

35I order that you serve a minimum term of five years and three months before becoming eligible for parole.

36What is the PSD please, Mr Prosecutor?

37MR McKENRY:  Six hundred and 26 days, not including today.

38HER HONOUR:  I declare that 626 days of this sentence have already been served by way of pre-sentence detention.

39Thank you.  Is there anything else that I need to ‑ ‑ ‑

40MR McKENRY:  Your Honour, I wanted to check the numbers there.  Your Honour imposed - and I take nothing from what you said ‑ ‑ ‑

41HER HONOUR:  I beg your pardon.  It should have been six months.  I thought I said six years and nine months?

42MR McKENRY:  You said six and a half, Your Honour. 

43HER HONOUR:  I am terribly sorry.  That should be six years and nine months.  Thank you, Mr McKenry. 

44Twelve months on the second charge, three months of which is served cumulatively, giving a total effective sentence of seven years.  All right? 

45MR McKENRY:  Thanks, Your Honour. 

46DEFENCE:  Thank you, Your Honour.  As Your Honour pleases.

47HER HONOUR:  Thank you very much. 

48MR McKENRY:  As Your Honour pleases.

49HER HONOUR:  I thank counsel for their assistance.  We will now stand down to 2 o'clock.  Thank you.

‑ ‑ ‑