DPP v Phemister

[2019] VCC 2193

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR-18-02426

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALASTAIR PHEMISTER

---

JUDGE:

HER HONOUR JUDGE HAMPEL

WHERE HELD:

Melbourne

DATE OF HEARING:

3-9 December 2019 (Trial); 17 December 2019 (Plea)

DATE OF SENTENCE:

17 December 2019

CASE MAY BE CITED AS:

DPP v Phemister

MEDIUM NEUTRAL CITATION:

[2019] VCC 2193

REASONS FOR SENTENCE

---

Subject:          

Catchwords:              Sentence – rape – sexual assault – unanimous jury verdict – single episode offending – prior sexual relationship between complainant and accused – vulnerable complainant – opportunistic offending – no pre-planning – serious sexual offender – previous good character – very good prospects for rehabilitation – discretion not to subject accused to Sex Offender Registration Act – imprisonment

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms R. Harper

Office of Public Prosecutions

For the Accused

Mr P. Stefanovic

Ben Von Einem and Associates

HER HONOUR: 

Alastair Phemister, you were in a relationship with Vicki Phillips for a period of ten months between December 2016 and August 2017.  That relationship was conducted in secret as, at the time, Ms Phillips was married and you were in a long term, live-in relationship with another woman. Despite this, your relationship with Ms Phillips appears to have been a loving and committed relationship.  On the evidence that was heard in the trial, you both had said that you intended to leave your respective partners for each other.

Ms Phillips did in fact leave her husband in August 2017. A week or two before, she discovered that she was pregnant with your child and she told you that. She moved out of her marital home in mid-August and was staying with her friends. It was around about that time that your partner discovered the relationship by coming across a Facebook message from Ms Phillips to you saying ‘I love you’. Your partner sent Ms Phillips an abusive text message.  Ms Phillips tried to call you, but you did not respond to her calls until the following day.  When you did respond, you told her that your relationship with her was over and that you could not talk to her.

Ms Phillips continued to try to contact you over the next three weeks, but you did not respond.  During that time, she suffered a miscarriage. She eventually got through to you by using the phone of the man who became her new partner and who happened to be a work colleague of yours. Your partner was present when you took the call and, when she realised that Ms Phillips was the caller, she began to verbally abuse her. Ms Phillips told you that she had had an abortion. At trial, she said that she had intended to tell you about the miscarriage, but did not want to reveal that in your partner’s presence.

You called Ms Phillips the following day, when your partner was not present, and she told you she had in fact miscarried. You arranged to meet to discuss the end of the relationship.

You eventually met on 21 September, two days after that phone call. It was you who nominated the meeting place, initially a shopping centre car park, but you changed it at the last minute to a more secluded spot, not far away.  It was not unusual for the two of you, during the relationship, to meet like this.

When Ms Phillips arrived at the arranged meeting spot in her car, you pulled up in your car, got out of your car and approached her.  You spoke to her initially through the driver's side door of the car. You hugged her and she let you give her a hug, although she did not reciprocate. Both of you agreed that that was what had happened. You spoke with her from outside the car for a short time before, on Ms Phillips's invitation, you came to sit in the front passenger's seat. It was a cold and windy afternoon. Whilst sitting in the front of the car the two of you spoke about the relationship and the end of it.  Ms Phillips was crying.  You tried to give her another hug, but were unable to because of the positioning of the seats and the console.  You then asked Ms Phillips if she would come into the back seat with you, so that you could give her a ‘proper hug’.  She agreed and you both got into the back seat of the car, where you hugged. 

You then began to rub Ms Phillips’s thigh.  She moved your hand away, but you put your hand on her vagina and started rubbing it over her clothes.  All that I have recounted so far is common ground evidence, admitted by the two of you.

The account I give now is the account I am acting on for sentencing purposes and it is based on evidence given by you and admitted by you, or evidence which, whilst not accepted by you or challenged by you, must have, by the jury verdicts, have been accepted by the jury. 

As you put your hand on Ms Phillips's vagina and rubbed it, she said ‘No, you can’t do this’.  It is this act of you touching her, over her protests, that constitutes Charge 1 of sexual assault of which the jury found you guilty.

You then lifted Ms Phillips's clothing and put your mouth on her breast.  She was crying and saying 'No, stop' and it is this act which constitutes Charge 2 of sexual assault of which the jury found you guilty.

At some stage, either before or after this conduct, you put your hands around Ms Phillips's neck.  She described the hold as gentle.  You too described the hold as gentle when you spoke of it to the police, but nonetheless, it was both of your hands around her neck.  You then pushed Ms Phillips's legs open and she tried to close them over the pushing, but was not able to do so. You put your hand under her clothing and digitally penetrated her vagina.  She was crying and trying to move your hand away. She said, ‘No, you can't do this.  We're not together anymore', and she repeatedly said 'Stop'. It is this act which constitutes Charge 3 of rape by digital penetration, of which the jury found you guilty.

There was then a struggle, as you pulled her pants down, over her resistance. You performed oral sex on her (this was not the subject of a separate charge) before you penetrated her vagina with your penis. She was crying and saying 'No' and trying to move away from you. You withdrew before ejaculation, she having asked you not to ejaculate inside her, and you ejaculated into your hands as you were still leaning over her.  She was still saying ‘No. You can’t do this’ and crying and it is this act of penile-vaginal penetration which constitutes Charge 4 of rape of which the jury found you guilty.

When you had finished, Ms Phillips was still crying. You said, ‘I’m so sorry.  I shouldn’t have done that’.  Ms Phillips said ‘Leave me alone.  Please go’.  You said, ‘Please don’t tell anybody’ and left. 

Ms Phillips drove home. By the time she got home, you had called her twice, but she had not picked up and you sent her a message saying 'I'm sorry I can’t believe I did that' followed by another saying 'Please don’t tell anyone'.

Two days later, you sent Ms Phillips text messages which said, among other things:

‘I will give you space because I really fucked up, but please just think and talk to me at some point;’

and

‘Please talk to me before saying something to people in [sic] so sorry [Vicki] I'm so sorry.’

On that same day, you spoke to Ms Phillips by telephone.  Unbeknownst to you, the conversation was recorded with the assistance of Victoria Police. In the course of that conversation, Ms Phillips said 'you didn’t listen to me when I said, "don’t” and “no”’ and you said 'Pretty much'.  Ms Phillips also said ‘We were only meant to talk’ and you said ‘I know’.

You then said ‘I’m sorry, I couldn’t help myself. There’s no excuse for it.  I’m sorry. As soon as I saw you I just wanted you. I wanted to be part of you, I wanted to be in you again’. Shortly before the call ended, you asked her ‘Do you wanna charge me?’

In your interview with the police, a short time later on 3 October 2017, you said that you could tell Ms Phillips was upset after you had sex and you were concerned that you had hurt her and that was the reason you had apologised, to try and appease her. You said that you told her not to tell anyone because her friends already disapproved of the relationship. 

In the interview, when police asked you whether you remembered saying, ‘Do you wanna charge me?’ you said ‘No, I’ll be perfectly honest with you, I don’t remember a lot of that conversation because I was in tears. I do know – I thought I said, “Did I rape you?” at one point, I’m not sure.  And she didn’t answer me to that at all’.  You were asked whether you thought you had raped Ms Phillips and you said, 'She turned around and started crying and I've been going through my head, what the fuck is going on?  So I considered pretty much everything'.

You gave evidence at the trial. You said that the reason you had asked Ms Phillips whether she wanted to charge you was because you had become aware the day before the conversation that she had made a statement to the police, or a complaint to the police.

You said that Ms Phillips’s now new partner, the man with whom you had worked, had explained to your supervisor that he needed to take the afternoon off from work because Ms Phillips was at the police station making a statement against you and he needed to pick her up. You said that the supervisor then passed this on to you.  You said that it was that that was on your mind when you asked Ms Phillips whether she was going to charge you. 

You were also questioned at trial about the comments that you had made in the interview about the sex being forceful, that was the way you described it, and your concern that you had hurt Ms Phillips.  You said:

'In relation to other sexual acts, I hadn't been that forceful at all.  Like, I hadn't pushed her around or anything.  I hadn't held her down or anything like that.  I felt like I hadn't forced her into anything too much.  At that point during the phone call, I was just trying to appease [the complainant] and [console] with her.  I was upset and wanting to talk with her, and she made it clear halfway through that she didn't want to talk'.

It is clear from its verdicts that the jury rejected your explanation given to the police and in the course of giving evidence, as to why you had apologised after the sexual act, that is for fear that you had physically hurt Ms Phillips, and during the recorded telephone conversation. It is also clear that the jury accepted that what you had said in the text messages and in the telephone conversation could properly be regarded as admissions that you had knowingly engaged in non-consensual sex with Ms Phillips.

At trial, you maintained that the sexual acts were consensual, that is, that
Ms Phillips consented to them and that you had a reasonable belief that she was consenting.  By its verdicts, it is clear that the jury was satisfied, not only that Ms Phillips did not consent to any of the four acts, but that you did not reasonably believe at the time that she was consenting.

In her victim impact statement, Ms Phillips said:

'I couldn't understand why someone I thought I knew would let this happen, someone I truly trusted and loved with all my heart.  You hurt me in the most unimaginable of ways.  You, who I actually fell in love with and truly loved with all my heart and trusted so deeply, yes you, you destroyed me.  Yes I have survived, yes I am alive, but I don't live anymore. I am existing, but I am empty.  I am a real person who went through this torture.  I am not a statistic or a nameless face on the streets.  I am a mother, a sister, a daughter and a friend.  What happened to me was real.  It has taken a lot of confidence to stand here and speak about how I feel.  What you have done is unacceptable behaviour and that no one, no one should ever have to go through this.  No one should ever be treated like this.  No means no.  I feel like you should never have done this to me'.

It is clear also, from what else Ms Phillips said in her victim impact statement, that she has been profoundly affected by this and it is clear the impact on her is felt so deeply because she had loved and trusted you.

Rape and sexual assault are very serious offences. One measure of the seriousness with which society generally regards them are the maximum penalties prescribed by Parliament: 25 years imprisonment for rape and 10 years for sexual assault. It is clear that general deterrence, specific deterrence, denunciation and just punishment for committing offences of rape and sexual assault must loom large generally in the sentencing mix for offences of this sort.

As Ms Harper for the prosecution correctly submitted, this was a gross breach of trust. You had been in an intense and loving relationship. A mutual, loving, sexual relationship had been a feature of that relationship. At the time of the offences, it was a time of intense emotion for both of you and Ms Phillips was particularly vulnerable.

Each of you had said that you intended to leave your partners, to be openly together and to have a life together.  She had left her partner and her home.  She had become pregnant to you, something you were both apparently pleased about. You then unilaterally called the relationship off after your partner had discovered its existence and shut off communication.  She was left high and dry. She miscarried and you were not there to support or comfort her or grieve with her.

It was in that context that you then agreed to meet to talk. Even if Ms Phillips had had hopes that the relationship would resume, or might resume, you had made your decision, you were staying with your partner and when you met you made that clear to her. Ms Phillips was upset and crying.  That you would, in those circumstances, initiate sex and do it over her protests, including her saying 'You can’t do this we are not together any more', makes it, not only a gross breach of trust, but makes it clear that Ms Phillips was making her position very clear. Sex was a mutual, shared feature of a loving relationship for her.

You, on the other hand, had made it clear that, on this occasion, despite the fact that you had terminated the relationship and you were the one who severed contact, you had made your choice to stay with your partner and, by engaging in sexual activity with Ms Phillips on this occasion, you were pursuing your own sexual gratification without regard for her wishes, her autonomy and without respect for her position that, once the relationship was over, so was the sharing of sexual pleasure with each other. This was not only a breach of trust, it was opportunistic and I accept Ms Harper's characterisation that it was possessive in nature by reference to your words, 'Once I saw you I couldn’t help myself' to support that.

In his careful and measured submissions on the plea, Mr Stefanovic sought to place this on a scale of seriousness by reference to other offences of sexual offending, rape and sexual assault and by reference to the existence of or the absence of aggravating features present in other cases and which when present, had assisted a court in characterising offences as being at the higher end of the scale of seriousness.  There is some benefit in identifying what the aggravating features here are and what are the aggravating features that are, at times, present in other cases that are not present here. But this is not a raw comparison of looking at every possible aggravating feature and then, if they are absent, saying this therefore is not as bad.  It simply helps to characterise what are common features of this type of offending and help place this offending somewhere in a context.

Ultimately, it is the characterisation of the features present in this offending that go to the assessment of its seriousness that is important to take into account. The main features of seriousness have already been identified, that is, the breach of trust and the context of the relationship and the particular vulnerability of Ms Phillips at the time.  I accept that this is an offence involving a single victim, that it is four acts but part of a single episode that was of relatively short duration. However, as Ms Phillips's victim impact statement makes clear, acts even of a short duration, when there is such a gross breach of trust, can have a profound and lasting impact.

Mr Stefanovic submitted that there was no violence and no threats of violence. I have made reference to the conduct of the hands around the throat.  Accepting the evidence both of Ms Phillips and you that this was a gentle placing of the hands around the throat, nonetheless I take that to be a threatening gesture because it conveys a potential and that is what a threat is.  I accept that no weapons were used, that, apart from bruising, no physical injury was caused and that there was none of the possessive or jealous actions that often accompany sexual offending occurring at the end of a relationship, particularly if it is not the offender who has called off the relationship. 

There was no additional degradation or humiliation, apart from the fact of forced and non-consensual sexual activity and this does appear to be opportunistic rather than pre-planned. Having said that, there was in my view an element of predatory behaviour in it, having regard to the vulnerability of Ms Phillips, as I have already identified and as I discussed in the course of the plea with
Mr Stefanovic. Although there was no pre-planning, this was clearly conduct of selfish sexual gratification on your part and occurring in a relatively secluded, pre-arranged meeting spot chosen and appointed by you.  Having said that, I acknowledge the evidence that there were cars going by, but the nature of the conduct and the impact of it on Ms Phillips was such that that was of no assistance to her during the conduct itself.

There are therefore clearly features of the offending, as I have identified its seriousness, that mean that, subject to considerations personal to you, the sentencing principles of denunciation, deterrence, both general and specific and just punishment all must be given proper weight in the sentencing mix.  So far as deterrence is concerned, both general and specific, it is clear that autonomy in a sexual relationship must be respected on all occasions in every sexual act and the sentence must act as a marker of the importance in a free society of the autonomy of each party to a relationship and their autonomy in respect of each and every individual sexual act that a couple might think to engage in.

The sentences must act as a deterrent to you and to others who are in or at the end of a relationship. It must impress upon perpetrators that they cannot at any time engage in non-consensual sexual activity and when detected, as they so often will be, that they will be punished and punished in a way that reflects the seriousness of that overbearing of will and that removal of autonomy or lack of respect for autonomy. As Ms Phillips said, 'No means no'.  Selfish sexual gratification is simply not on.

So those who breach that compact of trust that exists in a mutual and loving relationship by engaging, during the course of that relationship or after its end, in non-consensual acts, must understand how wrong their conduct is and that we as a community must denounce engaging in such activity.  That the sentence must mark as a deterrent to you personally follows from the fact that this was a jury verdict and that therefore you denied that the activity was non-consensual. You cannot treat a woman in a relationship, or at the end of a relationship, in the way that you treated Ms Phillips and the sentence must be a mark of that.

Let me just deal briefly with other sentencing considerations before coming to matters personal to you. By s 6E of the Sentencing Act, by reason of the nature of these charges, you come to be sentenced as a serious sexual offender in relation to the third and successive charges if a term of imprisonment is imposed. It was acknowledged by Mr Stefanovic that, having regard to the nature of the offences and the conduct involved, a term of imprisonment in respect of each of charge was inevitable.  That means, so far as Charges 3 and 4 are concerned, you come to be sentenced as a serious sexual offender and I must make that declaration on the record and I do so.

The Sentencing Act also requires that, once a person is sentenced as a serious sexual offender, there is a presumption in favour of making the sentence for each of those offences cumulative and that protection of the community becomes the paramount consideration.  I do not consider that it is necessary, in order to protect the community, to make the sentences cumulative and I do not consider that a sentence disproportionate to the offending overall is necessary.

In my view, a modest degree of concurrency between each charge is warranted to reflect the fact that, although it is part of a single episode, there were four separate offences. However, that totality requires the sentence to reflect the whole episode is an important sentencing consideration. 

Finally, as I indicated in the course of submissions, I do not consider that in the circumstances this is a case where the discretion to make you subject to the provisions of the Sex Offender Registration Act should be exercised and I will not make such a declaration.

What then are the matters that temper the seriousness of the offending that are personal to you and which I must weigh in the sentencing mix?  You are relatively young.  You were 23 at the time and are now 25.  That still is an offender on the young side and I accept Mr Stefanovic's submission that powerful evidence shows that the young brain does not fully mature until a person is about 25 years of age.

You have no criminal history.  You had not been charged with or convicted of any criminal offence before this and there have been no charges dealt with or laid since then and you are entitled to have an otherwise good and blameless life taken into account in your favour. You are obviously of at least average intelligence. You successfully completed high school. You have successfully completed your apprenticeship as a carpenter and you have been engaged in work as a qualified carpenter, now second in charge in a business.  You have a good and steady work history.

You have very strong family support.  Your parents have been present at court throughout the trial and the sentencing hearing and there have been other people who are clearly friends and supporters of you, who have been present from time-to-time and who are present today at the sentencing hearing.  There is evidence of significant community engagement, helping friends and family and a long history of involvement in scouting and acting as a role model to other younger people.  All of those matters count in your favour. 

A significant number of testimonials were provided and they speak in one voice, of somebody who is, apart from this, well regarded, loved, respected as a friend, a family friend, a work colleague, somebody who helps others and goes out of his way to help others.  There is a common theme, as Mr Stefanovic identified, of surprise that you could have engaged in such conduct, been charged with it and now been convicted of it, because it does not sit with the person they know, they have seen and they have had contact with over the years they have known you.

I accept that you are, apart from this, a person who is entitled to have that affirmative evidence of good character and good reputation taken into account in your favour.  And that together with your youth, your absence of criminal history, your strong family support, your history of community engagement and your good and successful work history, all count very much in your favour in assessing your prospects for rehabilitation as being very good.

I just want to say one other thing about the testimonials.  Sexual offences by their very nature generally occur in private and often are committed by people who are otherwise of good character and who otherwise, in their dealings with others, display respectful treatment.  It is often this which enables people to obtain trust and to offend.  I have already noted that I set aside any observations in the testimonials that in any way challenge the verdicts of the jury. The authors of course of the testimonials were not present in court, they did not hear Ms Phillips's evidence, they did not hear her cross-examination and most of them did not hear the balance of the evidence in the trial.  So whilst I accept what they say are statements of the man they know you to be, they can in no way undermine the correctness of the jury verdicts, the jury being those twelve people chosen at random from the community, who heard all of the evidence, who took so long to consider it and who brought in the unanimous verdicts of guilty in respect of the charges.

But having said that, your prospects for rehabilitation are properly too regarded as very good and are properly to be taken into account in fixing not only the head sentence but also the non-parole period.  I have come to the conclusion that there should be a considerable gap between the head sentence and the non-parole period to give you not only an incentive to do your time in custody well and engage in programs that are offered to you in custody to assist in your rehabilitation and reintegration into the community, but also to seek to demonstrate that you can continue to use your time fruitfully and well so as to maximise your prospects of your release at the earliest possible time and have a supported reintegration into the community.

I urge the prison authorities, first of all, to make available to you programs that will assist in your rehabilitation, particular sex offender treatment programs to assist you to understand respectful relationships, autonomy and ‘no’.  They should also consider putting you in a position where you will be able to apply for parole at the earliest possible opportunity and give full consideration to release upon parole, so that you are supervised upon your ultimate release into the community.

Could you now please stand.

Alastair Phemister, on the four charges on which the jury found you guilty, you are convicted. On Charge 1 of sexual assault, you are sentenced to be imprisoned for a period of two years.  On Charge 2 of sexual assault, you are sentenced to be imprisoned for a period of two years. On Charge 3 of rape, you are sentenced to be imprisoned for a period of four years and on Charge 4 of rape, you are sentenced to be imprisoned for a period of five years.

The sentence on Charge 4 is the base sentence.  I direct that twelve months of the sentence on Charge 3, three months of the sentence on Charge 2 and three months of the sentence on Charge 1, be served cumulatively upon each other and upon the base sentence. That makes a total effective sentence of six years and six months and I fix the period of three years and six months as the time that you must serve before being eligible for parole. I declare that you have spent seven days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

I make the order sought for the taking of a forensic sample.  I direct that that be taken by way of a buccal swab, that is a mouth swab.  I must warn you or advise you Mr Phemister that if you do not cooperate in the provision of that sample, the police are authorised to use reasonable force and they will use the more invasive means of obtaining such a sample, namely the taking of a blood sample.  Are there any further orders that are required to be made?  I have made the sexual offender declaration in respect of Charges 3 and 4.  All right, thank you could you remove Mr Phemister please.

- - -