IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
          Suitable for Publication	
AT Melbourne
CRIMINAL JURISDICTION
CR-21-00455

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
LACHLAN BUTCHER		

---

JUDGE:	HER HONOUR JUDGE HASSAN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	TRIAL – 22 March 2023- 24 March 2023 inclusive and 24 March 2023 to 31 March 2023 inclusive. 
Plea – 16 May 2023. 
Sentence – 14 July 2023.	
DATE OF SENTENCE:	14 July 2023	
CASE MAY BE CITED AS:	DPP v Butcher	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1224		

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords: 	Sentence — sexual assault (1 charge), rape (1 charge) and a related summary charge contrary to s. 7 Surveillance Devices Act 1999– plea of guilty – breach of trust - work colleagues and friends at the time of offending.
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited:	 Gray (a pseudonym v The Queen [2018] VSCA 163; Di Georgio v The  
 Queen [2016] VSCA 335; Kalofolias v The Queen [2017] VSCA 308 
Sentence:	 Total effective sentence of 5 years and 9 months’ imprisonment. Non   
		parole period of 3 years and 9 months.
	Section 6AAA declaration: But for the plea of guilty to the summary charge, a term of imprisonment of 15 months would have been imposed.
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions 	Ms S Pillai	Solicitor for the Office of Public Prosecutions	
			
For the Accused	Mr M Fitzgerald	Doogue & George Defence Lawyers	

HER HONOUR:

Introduction.
1	Lachlan Butcher, you were indicted on two charges of sexual assault (Charges 1 and 4) and 5 charges of rape (Charges 2, 3, 5, 6 and 7).
2	You pleaded not guilty to all charges.  You were found guilty by jury verdict of 
one charge of sexual assault (Charge 1) and one charge of rape (Charge 6).
3	You have also pleaded guilty to a related summary offence pursuant to s7 of the Surveillance Devices Act 1999 which is an offence of recording a private activity without consent.
4	The maximum penalty for sexual assault is a term of imprisonment of 10 years. The maximum penalty for rape is 25 years.
5	The charge of rape is a category 1 offence, and the court must impose a custodial order pursuant to s5(2G) of the Sentencing Act 1991 ('the Act') and a combination sentence is unavailable pursuant to s44 of the Act.
6	The charge of rape is also a standard sentence offence, and the standard sentence is 10 years' imprisonment.
7	The maximum penalty for the summary charge is 2 years' imprisonment.
Circumstances of offending
8	Turning to the circumstances of your offending.
9	In sentencing you, I am bound by the principles in the case of Cheung v The Queen.  As such, I must interpret the facts in a way consistent with the jury verdict.
10	I find the circumstances of your offending were as follows.
11	The victim is Bianca Joseph.  Ms Joseph was 25 years old at the time of your offending and she worked with you.  You and Ms Joseph were friends as well as colleagues.
12	On the night of Thursday, 25 July 2019, you and Ms Joseph and other work colleagues had dinner together at a restaurant on Bourke Street.  Afterwards you and Ms Joseph and three colleagues went on to a bar.
13	Ms Joseph drank around five to ten glasses of red wine at dinner, and ordered a 
rum and coke at the bar, although she was not clear whether she had drank any of it.
14	Ms Joseph was alcohol affected.  She described herself as heavily intoxicated.  There is CCTV footage from a lane near the bar which depicts her vomiting when she went outside with you to have a cigarette.
15	It was getting late, and arrangements were made to go home.  Ms Joseph intended to go to her boyfriend's home in Moonee Ponds.  She ordered an Uber.  You got in the Uber with her when it arrived.
16	One of the contested issues at your trial was whether you changed the destination address from Moonee Ponds to your address in Brunswick using Ms Joseph’s phone, or whether Ms Joseph agreed to come to your house and changed the destination herself, which is what you told police in your record of interview.
17	My conclusions on this topic are as follows.  First, it is not necessary for me to resolve this issue in order to interpret and give effect to the jury's verdict.  Secondly, although I am not bound to resolve all contested issues in your favour, if I were to find that it was you who changed the destination address without Ms Joseph’s consent, this would be a finding that your behaviour was predatory and calculating from the time the Uber arrived, and therefore an aggravating aspect of your conduct.  I would therefore need to be satisfied beyond reasonable doubt on the evidence on this issue.  I am not so satisfied and cannot exclude the reasonable possibility that Ms Joseph may have been confused on this point, therefore I do not sentence you on the basis that it was you who changed the destination address during the Uber ride.
18	In the Uber you again witnessed Ms Joseph vomiting into her scarf.  When you arrived at your address she vomited again.  It was her evidence she vomited two more times.  It must have been clear to you, having witnessed her repeatedly vomiting, that Ms Joseph was heavily intoxicated and clearly unwell.
19	Ms Joseph fell asleep on the couch in your living room at which point you invited her to go into your bedroom.  She got into your bed in her clothing and fell asleep.  She awoke to find you removing her work pants.  She got up to vomit again and then went back to bed and fell asleep.  She said she awoke this time to find you taking off her top and bra and touching and fondling her breasts (Charge 1).
20	Ms Joseph began pushing your hands away.  She gave evidence that you penetrated her vagina with your fingers, tongue, and penis (Charges 2, 3 and 5). She gave evidence that you opened her legs and got on top of her and put your penis in her vagina.  She said she could not see what was happening, but it felt like a penis was inside her.  She gave evidence that she believed she began telling you to stop when you put your tongue and fingers in her vagina.  She gave evidence that when you were on top of her, she was trying to push you off with her hands.  She said, 'I remember him stopping when I pushed him off but trying again a little while later'.
21	She gave evidence she fell asleep after you got on top of her, and then she woke up to the same thing.  She said, 'I felt his penis go into my vagina again and that woke me up.  And I pushed him off again when it happened, or when I felt it' (Charge 6).
22	She gave evidence at some point you were licking her nipples (Charge 4) and at some point, about which she could not be certain you put your penis into her mouth (Charge 7).
23	As I have already stated you were convicted on Charges 1 and 6.
24	I am satisfied consistent with the verdicts, that the jury concluded beyond reasonable doubt that Ms Joseph was asleep when you removed her top and fondled her breasts (Charge 1) and you were aware she was asleep. And that the second instance of penile penetration occurred after she had been telling you to stop and desist from sexual contact, which initially you did, only to penetrate her vagina with your penis for a second time when she had again fallen asleep, and when you were aware that she had again fallen asleep, and in circumstances where it was abundantly clear to you, given her protestations that she was not consenting (Charge 6).
25	In respect of the charges where you were acquitted Ms Joseph’s admitted confusion about the sequence of these sexual acts must have either caused the jury to have a doubt whether they in fact occurred, or the jury must have harboured a doubt whether these sexual acts occurred after Ms Joseph had clearly indicated her lack of consent, or occurred when she was sleeping.
26	It is my conclusion that the jury convicted on charges where they were satisfied you touched or penetrated Ms Joseph when she was asleep and you were aware she was asleep, and in respect of the second act of penile penetration of her vagina, this occurred after she had repeatedly told you no and had pushed you away.
27	At 4.54am, Ms Joseph sent her boyfriend a text which read, 'Please leave the door open, I honestly think I’m being raped.'
28	Ms Joseph gave evidence that at some point later in the night she saw a flash and heard you masturbating.
29	You left your home early the next morning and went to work.
30	Ms Joseph left your home sometime after 10.51 am.  She slept for the rest of the day.  She complained about what had happened to her to her sister and her boyfriend, and to a work colleague and to the human relations officer at her work.
31	She consistently complained that she had been drunk, in and out of sleep and had said 'no' or 'stop' multiple times and that you had penetrated her vagina with your penis.
32	She purchased the morning after pill at a pharmacy at 9.23 pm on 28 July 2019.
33	You began to contact her via text at 9.30 am on Friday 26 July.  Initially Ms Joseph did not respond but at 11.18 pm she sent you a text in response to you asking if she was ok, in which she replied, 
'No I am not feeling okay what you did last night was not on, I said no and pushed you off so many times.  You saw how drunk I was and basically you took advantage of that.  I feel really violated tbh.  Did you take a photo of me last night because I remember seeing a flash.  Yeah I really don't know what you were thinking and I feel really uncomfortable about'.
34	You responded at 9.22 am on Saturday the 27th.  You apologised and stated, 'Also, no photo, I did turn it on though as a flashlight instead of turning on the lights'.
35	This statement was shown to be a lie, as were your denials of having photographed the victim to police in your record of interview, when police later located two deleted photographs on your mobile phone.  One taken at 7.02 am on 26 July 2019, which depicted Ms Joseph’s naked torso and vagina and your naked penis.  The second taken at 7.13 am on 26 July 2019 which depicted the back of Ms Joseph wearing only black underwear lying on your bed.
36	These photographs are the basis of Summary Charge 9.

Victim Impact Statement.
37	Ms Joseph has made a victim impact statement.  She says she continues to feel hurt, confused, betrayed and empty because of your offending.  She says your offending has taken a significant emotional toll on her.  She says she is often fearful especially in the city and she still fears that she may see you.  She says she had to start going to therapy and has been diagnosed with depression, anxiety, and PTSD.  She says she tries not to let her trauma define her, but she feels she has lost her identity.  She says she has become incapacitated by anxiety and depression and gave up work in September 2020 and did not resume working until February 2022.  She says the trauma has left her socially isolated and afraid to leave her home.  I take into account the effects of your offending on Ms Joseph in the sentence I will impose.
Personal Circumstances.
38	I turn now to your personal circumstances.
39	You were born in October 1990.  You were 28 years old at the time of your offending and you are now aged 32.
40	You were born in Sydney and raised in Marrickville.  Your parents are both teachers and you have a younger sister.  You had a stable, loving, and supportive homelife.
41	You were talented academically and gained entry into a selective school.
42	You are musical and play the trumpet and piano and have played in an orchestra.  You were also athletic and pursued competitive swimming at a State level.
43	You completed your Bachelor of Arts at the University of Sydney.  In 2013 you travelled to Jordan where you took an intensive course in Arabic, and upon your return to Australia you completed a Masters in International Security Studies.  
In 2014 you worked for the Red Cross in Kenya for a program focused on improving water quality and responses to flooding.  You worked for the next 
two years managing international development programs in Africa and India.
44	Upon your return to Australia, you worked for a company working on development projects in Uganda and India.
45	You relocated to Melbourne in 2016 and after a period of adjustment to living in a new city you began working at the victim’s workplace until you were stood down in response to your offending.  You were only unemployed a short time before you found another position in the health sector.
46	When the COVID-19 pandemic hit you relocated to your parents' farm in Gippsland, you commenced a relationship with your current partner in 2021.
47	You have no prior criminal history.
48	Character references were tendered from family members and friends.  They all describe you as an intelligent, even gifted individual, who has a history of community involvement and who is a caring family member.  You have the continued support of your family and of your partner.
Submissions
49	I turn now to the submissions of the parties, and I begin with the submissions made by Ms Pillai on behalf of the prosecution.
50	Ms Pillai submitted that your offending was brazen and involved a significant breach of trust.  She submitted your offending was not momentary but took place over a period of time during which you were well aware Ms Joseph was not consenting.  She submitted your offending could not be properly characterised as spontaneous or opportunistic.  She submitted you took advantage of a vulnerable victim who was intoxicated and coming in and out of consciousness and who at times was clearly protesting and resisting.
51	The offence involving the photographs taken of the victim is a serious example of this offence and particularly heinous in that the victim was unaware and when subsequently questioned by her about whether you took the photograph you denied having done so.
52	On the gravity and effects on a victim of the offence of rape Ms Pillai referred me to the observations of the Court of Appeal in the case of Gray (a pseudonym) v The Queen in which it was said:
'Rape is an intensely personal crime.  The effects on the victim are not just those that flow from the physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms.  This is the significant impact of rape on the victim.  It needs to be given proper weight in sentencing; it cannot be overlooked or undervalued.'
53	She submitted you have demonstrated no remorse or insight and notwithstanding your prior good character my assessment of your prospects of rehabilitation should be guarded.
54	She submitted the principles of general and specific deterrence, community protection, denunciation and just punishment were all engaged in sentencing you.
55	She referred me to the comparator cases of Di Giorgio v The Queen and Kalofolias v The Queen which were both cases of rape involving intoxicated victims and who were in a subordinate position in the workplace in relation to the offender.  In both those cases a sentence of six years was imposed on charges of rape.
56	Ms Pillai submitted a term of imprisonment consisting of a head sentence and a non-parole period was the only appropriate sentence.
57	Dr Fitzgerald who appeared on your behalf did not dispute the seriousness of your offending and accepted that only a term of imprisonment could adequately reflect the gravity of your conduct.
58	He submitted however that your offending was not predatory or planned but should be regarded as opportunistic.  He accepted that the victim was vulnerable because of her intoxication and she was a friend who you should have cared for and not taken advantage of, but he submitted you were not her employer nor in any position of authority over her in the workplace.
59	He submitted your offending did not involve violence, threats, did not cause injury and was not committed in company, features identified by the Court of Appeal as occurring in the most serious examples of the crime of rape.
60	In mitigation he relied upon the delay in you being charged (which did not occur until June 2020) and thereafter the delays occasioned by COVID which delayed your trial.  This matter has been hanging over your head all this time causing you considerable stress and you have not offended during this period.
61	He relied upon your hitherto unblemished character as relevant to my assessment of your prospects of rehabilitation, and also relevant to the engagement (if any) of the sentencing principles of specific deterrence and community protection.
62	He submitted Charges 1 and 6 occurred as part of the same incident, therefore it would be open to me not to cumulate any part of the sentence on Charge 1.  Dr Fitzgerald accepted that the summary charge was a serious example of that charge and constituted a separate form of offending, and he conceded some cumulation upon Charge 1 and 6 was warranted.
Conclusions and Sentence
63	I now turn to my conclusions.
64	Your offending was serious.  You took advantage of your friend when she was sick and vulnerable and looking to you take care of her.  Instead, you took the opportunity to sexually violate her with no regard for her well-being, her bodily autonomy or her dignity.
65	I have already referred to the authorities which recognise the very harmful and significant effects of the crime of rape upon victims, and Ms Joseph has articulated many of these recognised long-lasting effects in her victim impact statement.
66	Your offending was not momentary or even of short duration.  I accept the prosecution submission that your offending occurred over a period of time when you realised Ms Joseph was intoxicated, slipping in and out of consciousness, and was clearly and unmistakeably saying 'no' and trying to resist your sexual advances.
67	After you raped her, you took sexually explicit photographs of her which is a further act of sexual violation of her by you.  This was a very serious example of this offence.  In one of the photographs, you have your naked thigh pressed against her naked body and your exposed penis in close proximity.  I am sentencing you for the charge to which you have pleaded guilty but you were, in my view, fortunate not to be charged on a further charge of sexual assault in respect of this image.
68	I accept the defence submission that your offending was opportunistic rather than predatory, and I accept the defence submission that you were not Ms Joseph’s employer, nor did you exercise any authority over her in the workplace, although you did occupy a senior position.  In this way, this case is distinguishable from the cases of Di Giorgio and Kalofolias in both of which there was a power imbalance between the offender and the victim.  I note also in each of those cases the offender was significantly older than the victim.
69	But notwithstanding this your offending did involve a breach of trust which is not dependent on a recognised relationship, rather it was situational. Ms Joseph trusted you on the night in question, to care for her.  You betrayed her.
70	Your offending is objectively serious and your moral culpability is high.
71	General and specific deterrence are both engaged in sentencing you.  
The message must be sent out by the sentence I impose that women are entitled to sexual autonomy and men who think they can override that will be punished.  The message must also be sent to you that your behaviour was totally unacceptable and you must never behave in this way again.
72	The sentencing principles of denunciation and just punishment are also relevant.
73	You have shown no remorse for, and no insight into your behaviour.  You are not to be punished for that but it is a matter for me to take into account in my assessment of your prospects of rehabilitation.
74	You were a decent and community-minded individual before this offending.  
The delay in this matter progressing as well as being an obvious source of anxiety for you, has also demonstrated that you have lived offence free for a period of around almost four more years.
75	I am prepared to assess your conduct as a one-off, albeit extremely serious lapse of judgment and conduct in what has otherwise been a good and productive life.
76	I assess your prospects of rehabilitation as good.  I do not consider community protection is engaged in sentencing you.
77	I take into account this is your first time in custody.  I take into account that conditions in prison remain difficult and restrictive due to the effects of the 
COVID-19 pandemic.
78	I have regard to the principle of totality and also to the principle of parsimony.
79	I take into account the maximum penalty for the offences and I also take into account the standard sentence for the offence of rape.  A standard sentence is not the same thing as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point, from which to add or subtract time.  It is but one matter that I must take into consideration and I do so.  I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully the facts, matters and circumstances I have taken into consideration in sentencing you.
80	Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you rely, I intend to sentence you to a sentence that is less than a standard sentence.  Taking into account all matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.
81	Mr Butcher, you can remain seated in the circumstances.
82	On Charge 1 you are convicted and sentenced to 18 months' imprisonment
83	On Charge 6 you are convicted and sentenced to five years and six months' imprisonment.
84	On Summary Charge 9 you are convicted and sentenced to 12 months' imprisonment.
85	Charge 6 is the base charge I direct that three month’ of the sentence imposed on summary Charge 9 is to be served cumulatively.
86	That makes a total effective sentence of five years and nine months.
87	Section 11A of the Sentencing Act, directs that unless it is in the interest of justice not to do so, the court must fix a non-parole period, in this case of at least 
60 per cent of the total effective term of imprisonment.  I direct that you serve a non-parole period of three years and nine months before you are eligible for parole.
88	Pursuant to s18 of the Sentencing Act I declare you have served 102 days of 
pre–sentence detention not including today, and I direct that be entered into the records of the court.
89	Pursuant to s6AAA but for your plea of guilty to the summary charge I would have sentenced you to a sentence of 15 months on that charge.
- - -