R v Empey
[2003] VSC 422
•6 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1432 of 2003
| THE QUEEN |
| V |
| CHRISTOPHER WILLIAM EMPEY |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2003 | |
DATE OF SENTENCE: | 6 November 2003 | |
CASE MAY BE CITED AS: | R v Christopher William Empey | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 422 | |
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Criminal Law – Sentence – Rape and intentionally causing serious injury – life-threatening loss of blood from vaginal injuries caused by fist penetration – serious head injuries caused by stomping and kicking – multiple long-term adverse consequences – prison for 14 years for rape – prison for 10 years for intentionally causing serious injury – 2 years cumulation – effective term of 16 years – non-parole period of 12 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gamble | Office of Public Prosecutions |
| For the Accused | Mr G. Chettle | Kenna Croxford & Co |
HIS HONOUR:
Christopher Empey, you have pleaded guilty to two offences, rape and intentionally causing serious injury, arising out of events that occurred on 27 July 2002. Your victim was a woman then aged 30. Given that publication of her name, and of matters likely to identify her is proscribed, I will refer to her after this as the victim.
On the night of 26 July 2002, the company that employed both you and the victim held an awards function at the Carlton Crest Hotel in Queens Road. At that function, you and the victim were on separate but adjoining tables. You were both drinking. You both engaged in dancing. After the function ended, the two of you were seen together in a bar near the hotel foyer. The last recorded sighting of you together there was around 1.30 a.m. Only an approximate estimate can be made of the level of drinking, given that blood samples for blood alcohol tests were taken only well after the events. The indications are that your blood alcohol level around 3 a.m. was around .15 and that the victim’s was around .2.
The next recorded sighting of the two of you was around 3 a.m. You and the victim were then on the landing of some tiled stairs in an entrance way leading to an apartment in Southbank. Two doctors lived in that apartment. They heard noises outside. You were seen outside. Unbeknown to you, from behind glass and at close range, you were being watched. You were then raping the victim. That rape was a particularly violent rape. Time after time, you drove your fist into her vagina. I will come back to the damage caused at that stage. You then stood up. You walked out onto the footpath. You looked up and down the street. You returned to the victim. You put your hands on the surrounds to the stairs. You then stomped on and kicked the head of the victim. I will come back to the damage caused at that stage.
Shortly after that, a police car pulled up nearby. You were then kneeling over the victim. When challenged, you said that you were helping her. Asked by the police to get onto the ground, you half complied. You then ran off. A policeman chased you. When he got near you, you told him to get back as you had a gun. It was a hollow claim, and was to no avail. You were subdued. You still chose to be aggressively un-cooperative. You were taken to a nearby police station. You said that you were going to kill yourself. You tried to harm yourself with a pen. That was ineffectual. Shortly after that, you spoke about the victim. You said, remorselessly, that she should not be breathing good air. You were taken to the Homicide Squad offices. There, you made a patently genuine attempt to take you own life. You broke a fluorescent light tube and stabbed yourself in the neck, causing severe wounds and blood loss.
Your wounds and your blood loss were minor compared to those of your victim. She has no memory of events after the pre-dinner drinks at the function. At the scene, from the effects of your driving your fist into her vagina, she was bleeding profusely. She was also bleeding from the injuries to her face and ear. When paramedics arrived, her face was seen to be already extremely swollen and purple. She was given emergency attention first at the scene and then at the Alfred Hospital before surgery. Before that attention was given, she was in a critically life threatening condition. She was covered in blood from the waist down. Her anal sphincter was totally disrupted. Faeces were coming from her vagina. Her right ear, which bore evidence of a bite mark, was partially amputated. There were fractures of facial bones. There was brain damage. There was more. There may be permanent neurological and gynaecological consequences. It suffices to repeat what the emergency doctor said. The injuries were horrific. You were the person, or as more than one witness has said, the monster that inflicted those injuries. Without urgent intervention, the victim would have died within a short time from when she was found. You would then have been facing a very much longer time in prison than the long sentence that I am obliged to impose.
I have read, carefully and in a way calculated to be appropriately balanced, the victim impact statements. I am obliged to read many such statements. It is by far the worst part of the work of a sentencing judge. So many victims write that they cannot express the true level of their pain. I accept that that is likely to be so. Here, the past pain, and the continuing pain of the victim, is patent. I have rarely had to read of such devastation. And the ripples, indeed the waves of pain, extend to members of her family. It is at least some consolation that they have each other, and that their bonds have been strengthened by this traumatic experience. They are a remarkable family. The victim is a remarkable woman. She is showing every sign of trying to minimise the extent of the damage you did to her body and her psyche.
I turn from your victim to you. Your background is comprehensibly summarised in the report of Mr Joblin. I will go to only some of the detail. Your father was a bank manager. He died suddenly when you were 11. His death came at an important stage of your life. He and you had engaged in various activities that made a difference to you. His death led to your isolating yourself and becoming depressed. Depression has been a significant part of your life.
You have an older brother and sister and a younger brother and sister. None have been in trouble with the law. One has been particularly zealous in upholding it.
Your education, your work history, your relationships history have all been commendable, although you have been unsettled at times. Ultimately, you were able to get a good qualification, a good job, a caring wife and the start of a family. But for one exception, you qualified as a man of good character. I have read and listened to much evidence that confirms the generally good position. The exception, a particularly bad exception, is that you chose to continue to drink to excess.
The circumstances leading to your past appearances before the courts are scarcely indicative of a disregard for the law. They do reflect the warnings that you have often been given but have failed to heed as to the drinking of alcohol, because of its effects on you. Of course, there were pressures to drink. Your work was conducive to social engagement linked to drinking. Moreover, you were depressed, and drinking was a form of self-medication.
From a relatively early stage, alcohol has been a problem. On several, indeed many occasions, the adverse consequences of your drinking to excess have been driven home to you. You have been well aware of those consequences. Yet, you chose to continue to drink to excess. Like so many others who have made that choice, you will spend a long time in prison regretting it.
I have carefully studied the various reports tendered on the plea. I have read the attempts made by Mr Joblin to provide an explanation for your acting as you did. He has done his best, but his answers are scarcely satisfying. As Mr Chettle kept saying to me, your actions are incomprehensible.
I turn to the considerable number of mitigating factors that I must have regard to.
You have pleaded guilty. You offered to do so from an early stage. That facilitates the course of justice. It saves the victim the ordeal of a committal and a trial. It is an indication of remorse and there are others. Not the least is what I accept to have been a genuine attempt to take your own life.
I also accept that you were in a state of considerable stress in the period immediately prior to the events of 27 July 2002. To the underlying depression and the pressures of work were added health problems with your 9 months old son.
An assessment of your prospects of rehabilitation depends substantially upon whether you can completely forego alcohol. If you can, the prospects are good. Your siblings have remained supportive and that is expected to continue to be the position. Your wife has been quite supportive of you to date. Understandably, she is now about to obtain a divorce.
You have needed comprehensive counselling since being in prison. It is likely that you will continue to need both that counselling, and anti-depressant medication, indefinitely. I accept that prison will be harder for you than for most. Through no fault of yours, you will have to be in protection. These days, prison structures and sentence management practices have reduced the level of disadvantage. But you will not have the same chances to work, study and do programs as a mainstream prisoner would. I must and will allow for that.
Although I have allowed for many mitigating factors, the fact is that your crimes were horrendous. They were the acts of a monster. Only a very long prison sentence is appropriate given the applicable sentencing considerations. The retention order has been signed. I declare and direct the recording of pre-sentence detention of 468 days. I propose to make an order for cumulation of 2 years. In relative terms, that is not great, given that both crimes are seriously bad examples of very serious crimes. They are linked in temporal terms. But the evidence of the witnessing doctor as to your acts, and of the treating doctors as to the injuries makes a distinction between the two crimes reasonably clear-cut.
On the rape count I impose a sentence of 14 years. On the count of intentionally causing serious injury, I impose a sentence of 10 years, concurrent as to 8 years, cumulative as to two. The effective head sentence is 16 years. I fix a non-parole period of 12 years.
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