IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS 		
		
v		
		
ADRIAN MOSS (A PSEUDONYM)		

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JUDGE:	HIS HONOUR JUDGE CAHILL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 July and 20 September 2021	
DATE OF SENTENCE:	23 September 2021	
CASE MAY BE CITED AS:	DPP v Moss (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1385	

REASONS FOR SENTENCE
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Subject: 			Rape
Catchwords: 			Guilty verdict after trial – intimate partner relationship – brief offending 
			without aggression or violence - lengthy delay in prosecution – 
			excellent prospects of rehabilitation
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited: 		DPP v Lian [2019] VSCA 75; R v Simon [2010] VSCA 66; Hasan v The 
			Queen (2010) 31 VR 28; R v Mason [2001] VSCA 62; R v Banting 
			[2006] NSWCCA 53; Jurj v The Queen [2016] VSCA 57; Thomas 
			[2019] VSCA 223; R v Njikodjevic [2004] VSCA 222; R v Merrett (2007) 
			14 VR 392
Sentence: 			5 years imprisonment with a minimum non-parole period of 2 years and 
			6 months
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr D. Cordy	Director of Public Prosecutions 	
			
For the Accused 	Mr P. Stefanovic	Victoria Legal Aid 	

HIS HONOUR:  
1	Adrian Moss, on 24 June 2021, a jury found you guilty of one charge of rape.  
2	In 2013 and 2014 you were in an intimate partner relationship with Rebecca Tranter.  
3	On 27 March 2014, the two of you had attended a fundraiser together in Ballarat.  Afterwards you returned to your place.  
4	At trial, Ms Tranter gave evidence, at your home, in a bedroom, after the two of you were kissing on the bed, you left the room and, when you returned, she watched you undress and put a condom on your erect penis. Then, whilst she was lying on her back, she let you put your penis inside her vagina.  Not long after, she told you to stop.  You did not react.  After about three minutes of further thrusting in and out of her, she said 'stop' again and you stopped for about five to 10 seconds before you put your penis back inside her, and, when you started to thrust backwards and forwards again, she hit you to the chest and then you stopped.
5	It needs to be made clear it was not the prosecution case your initial sexual penetration of Ms Tranter, after you undressed and put on a condom, was rape.  The prosecution case was having been told to stop and having stopped, you put your penis into her vagina again.  That is the act of rape alleged and which the jury found proven.
6	Ms Tranter reported the matter to police in February 2017.  
7	Police interviewed you on 13 June 2017.  You told them you met Ms Tranter online, things went well and within two or three months you were a couple.  You said in the early days of your relationship you stayed at her place where she lived with her parents and, later, she moved in with you for a bit more independence.  You said the two of you went to your church together and, when you were having a few issues in your relationship, you went to counselling with the church pastor and his wife.  You agreed they counselled both of you not to have sex until you were married. You said the two of you did not follow that guidance.
8	On legal advice, you exercised your right to remain silent when the rape allegations were put to you.  After the interview you were charged with rape and released on bail.  
9	You did not give evidence at your trial.  
10	In the conduct of your defence your counsel, Mr Stefanovic, did not dispute you had had sexual intercourse with Ms Tranter but disputed she told you to stop, that you did, and then put your penis inside her again.  By its verdict the jury accepted that she had told you to stop, that you did, and then you did put your penis inside her again.
11	Ms Tranter read her victim impact statement in court.  She said, before she met, you she had psychological issues but they were in control.  That changed as a result of your crime.  She sought help from the church pastor and from friends but felt they let her down.  She said that the pastor and his wife blamed her and the friends she told did not really react.  She left the congregation, she lost her four closest friends, and was asked to leave the choir.
12	She said she decided to make a report to police when her father died in 2016.  Since, her brother and his wife, and a cousin, have been her greatest support.  She said she has suffered flashbacks and mental scarring.  The court process was very distressing for her.  She feels broken and angry.  She is able to work only part-time and takes medication.  She said with psychiatric and psychological support, which is ongoing, she is getting better and she is now a survivor.
13	You have admitted a criminal record.  
14	In May 1997 in the County Court, at Mildura, you were convicted of sexual offences with children and sentenced to two years' imprisonment wholly suspended for two years and fined $2000.  The offending occurred between 1990 and 1992 when you were aged between 15 and 17 years.  You were sentenced as an adult.  The learned sentencing judge accepted your misconduct, while very serious, was the immature sexual experimentation of a child.
15	You were born in June 1974.  You were 39 years old when you offended. You are now 47.  
16	Your personal circumstances are set out in the report of Simon Candlish, psychologist.  
17	You are the youngest of three children and grew up on the family farm in the Wimmera Wheatbelt.  You reported a happy home life.  You went to local schools, until year 10, when you left home to attend a regional technical school.
18	After you completed year 12 you returned home and worked on the family farm for three years.  You then completed a four-year cabinetmaking apprenticeship and then, for nine years, you worked for a major hardware retailer.  
19	Your parents were good, God-fearing people.  Their church was a large part of your family life.  When your mother died you went home to help your father on the farm and stayed for several months.  Since, you have worked as a labourer, farmhand, truck driver and forklift operator.  
20	Ms Tranter was your first and only girlfriend.
21	In relation to your offending, you told Mr Candlish that she nodded at the start, which you took as her consent.  Towards the end you made a mistake.  You said, 'I did it when she didn't want it.  I don't know why I did that. It was a stupid thing to do'.  You said you have always valued and respected women and you are sorry for the pain and hurt you have caused her.  You were embarrassed when talking about your prior convictions.
22	You are a social drinker and have never used illicit drugs or misused prescription drugs.  You have no history of mental illness.  
23	Mr Candlish assessed you as a low risk of sexual reoffending.  In his opinion you do not require treatment or supervision.  
24	I have read letters from former employers, a former schoolteacher, family and church friends, your father and sister and her husband.  
25	Historical references describe you as a reliable, hardworking young person who had been a willing and cooperative school student and a quiet boy.
26	A recent workmate described you as 'nice, friendly, easy to get along with'.  You have always been active in your church community.  People who share your Christian faith describe you as helpful to others, respectful, and hardworking.  They have seen the stress and anxiety you have suffered for four years awaiting the outcome of these charges and have heard you express remorse for the harm you have caused.  Your sister, her husband, and your father describe you as caring, hardworking and honest.  
27	Your counsel acknowledged every rape is serious.  He submitted your crime, considering it was a single, short episode which lacked typical aggravating features such as premeditation or violence, is a low-range example of the offence.  
28	He also submitted, relying on Mr Candlish's opinions, you are a low risk of sexual reoffending and I should be satisfied you do not pose a risk to the sexual safety of the community. 
29	He acknowledged by reason of your prior convictions you are to be sentenced as a serious sex offender.  He submitted because you are a low risk of sexual reoffending, protection of the community requires less weight and a disproportionate sentence is not required to meet that objective.  
30	He submitted delay is relevant for the anxiety of waiting for your trial since you were charged and for your progress towards your rehabilitation since you offended.  
31	Mr Cordy, who appeared for the prosecution, submitted because rape is a very serious offence, denunciation and general deterrence are important sentencing considerations.  
32	He submitted your crime was aggravated by the vulnerability of Ms Tranter, who was recovering from major surgery, and your breach of her trust as her intimate partner.  He submitted your crime has had a significant, deep and lasting impact on her.  
33	He acknowledged because you had no recent convictions before your offending and have no convictions subsequent, specific deterrence is of lesser weight.
34	He accepted you are a low risk of reoffending and your prospects of rehabilitation are good.  
35	While you are to be sentenced as a serious sexual offender, he did not urge the imposition of a disproportionate sentence.  He made an application for a Sex Offenders Registration order but did not challenge Mr Candlish's opinions and conceded the test is a high one.
36	As the maximum penalty of 25 years' imprisonment indicates, rape must always be regarded as a very serious offence.  
37	The crime of rape encompasses a wide range of criminal culpability.  You ignored your partner's request, while you were having sexual intercourse with her, to stop, and stopped only when she pushed you away.  
38	While Ms Tranter was taking medication after recent surgery, when she went home with you, as she told the jury, she was not affected by her medication or alcohol.  Accordingly, I am not satisfied you took advantage of her in any significantly aggravating way.
39	There is no rule that a rape committed by an intimate partner is intrinsically more or less serious than one committed by a stranger.  It may be an aggravating feature where there is an abuse of some special knowledge and/or trust.  I am not satisfied this is such a case.  
40	Your offending was brief and without aggression or violence.  I accept your crime is at the lower end of seriousness for an offence of this kind.
41	Ms Tranter has significant psychological and psychiatric issues.  Your crime has contributed to her problems and I must take into account the harm you have caused her.  
42	There are factors which will moderate the sentence I will impose.  
43	I regard the very lengthy delay in laying the charges, and the trial, as an important mitigating factor in your case.  The delay was not attributable to you.  There is an unfairness to you that the charge was hanging over your head for four years and caused you considerable anxiety.  As well, for seven years since you offended you have substantially progressed your rehabilitation.  
44	I also take into account incarceration has been difficult for you as a first-time prisoner and the conditions of your confinement are harder while the public health pandemic persists.  
45	I must also consider your rehabilitation.  
46	I accept Mr Candlish's opinions, based on comprehensive testing and experienced clinical judgment, that you are a low risk of sexual reoffending.
47	Considering your prior offending occurred more than 30 years before this offending, when you were a child, you have not reoffended in seven years since, you have no mental illness or psychosexual disorder, you have shown insight into your offending, you have a good work history and you have a strong network of supportive family and friends, I assess your prospects of rehabilitation as excellent.
48	To mitigate your punishment and to give you the opportunity to advance your ongoing rehabilitation in the community I will impose a shorter than usual non-parole period.  
49	Because you have previously been sentenced to a term of imprisonment for sexual offences you are to be sentenced as a serious sexual offender.  That fact must be entered in the court record, and I must regard the protection of the community as the principal sentencing purpose.   I am satisfied because you are a low risk of sexual reoffending the sentence I impose need not be disproportionate to the gravity of your offence.
50	Mr Moss, by this sentence I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to protection of the community and to your rehabilitation.  
51	Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of rape, I sentence you to five years' imprisonment.  I fix a minimum non-parole period of two years and six months.
52	I declare you have served 77 days of your sentence by way of pre-sentence detention.  
53	Rape is a class 3 offence under the Sex Offenders Registration Act.  Because you committed the offence as a serious sexual offender, I may make a Sex Offender Registration order.  It is discretionary.  I can only make the order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons.  Because I am satisfied you are a low risk of reoffending, I have decided a registration order should not be made.
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