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

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JOSEPH MEADOWS (a pseudonym) 		

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JUDGE:	HIS HONOUR JUDGE LAURITSEN	
WHERE HELD:	Latrobe Valley	
DATE OF HEARING:	27 May 2022 	
DATE OF SENTENCE:	2 June 2022	
CASE MAY BE CITED AS:	DPP v Meadows (a pseudonym) 	
MEDIUM NEUTRAL CITATION:	[2022] VCC 816 	

REASONS FOR SENTENCE
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Subject:				CRIMINAL LAW 
Catchwords:		One charge of rape – two instances of penetration – departure from standard sentence – offence in middle range of seriousness – slightly positive prospects of rehabilitation – aggravating factors involved in rape
Legislation Cited:		Sentencing Act 1991
Cases Cited:		Gray (a pseudonym) v R [2018] VSCA 163; Radenbach v R (1991) 52 A Crim R 95; R v Martin 2007 20 VR 14; R v Verdins (2007) VR 269; Victorsen v R [2020] VSCA 248; Stamper v R [2021] VSCA 323; Wright v R [2021] VSCA 243; Nachar v R [2021] VSCA 242; DPP v Hermann [2021] VSCA 160; DPP v Beck [2021] VSCA 88; DPP v Todd [2019] VSC 585; Lockyer v R [2020] VSCA 321; DPP v Drake [2019] VSCA 293; DPP v Mitchell [2019] VCC 305; DPP v Skerry [2020] VCC 1189; DPP v Prodanovich [2019] VCC 1730; DPP v Palliyaguruge [2021] VCC 958; DPP v Dat [2020] VCC 344; DPP v Kavanagh [2020] VCC 651; DPP v Vickers [2021] VCC 445; DPP v Kala [2021] VCC 151; DPP v Abdi [2020] VCC 1668; DPP v Singh [2019] VCC 1484; DPP v Singh [2020] VCC 1102; DPP v Barbar [2021] VCC 180; DPP v McInnes [2020] VCC 729; DPP v Poole [2020] VCC 340; DPP v Iudice [2020] VCC 316; DPP v Amin [2019] VCC 1756; DPP v Powers [2020] VCC 1727; DPP v Hyde [2019] VCC 712; DPP v Thompson [2020] VCC 1178; Worboyes v R [2021] VSCA 169
Sentence:		Six and a half years’ with a non-parole period of four years’ and seven months’	
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr B. Sonnet	Office of Public Prosecutions 	
			
For the Accused	Mr C. Hooper	Anna Valos Criminal Law 	

HIS HONOUR:  
Introduction 
1	Mr Meadows, at the outset, I propose to sentence you to six and a half years' imprisonment and set a non-parole period of four years' and seven months' imprisonment.  I will declare your 725 days of pre-sentence detention as time served under this sentence. 
2	You have pleaded guilty to a charge of rape.  It is a rolled-up charge which is the bundling together of more than one offence into a single charge.  In your case, the charge comprises two instances of sexual penetration by you of the complainant.   
3	The maximum penalty for the offence of rape is 25 years' imprisonment.  It is also a standard sentence offence with a standard sentence of 10 years' imprisonment.  I will also explain the meaning and significance of a standard sentence offence and standard sentence later.  
Circumstances
4	The circumstances are set out in the document entitled 'Summary of prosecution opening', which is Exhibit A.  Your counsel agreed with its factual content.  Broadly, the circumstances of your offending are as follows. 
5	At the time of the offending, you were 45 and the complainant was 19.  You had known her and her father for about six years. 
6	Although you lived in Mt Eliza, you had been invited to stay at the Morwell home where the complainant, her boyfriend and her father lived in order to effect some repairs.  Behind the house is a bungalow.  There is a CCTV camera in the backyard.  You arrived there at 7.30 pm on Saturday, 30 May 2020. 
7	During the rest of Saturday and the following Monday, you and the complainant used drugs.  Exhibit A sets out your movements and those of the complainant over those days.  There is no need to repeat them.  You arrived back at your Morwell home at about 3.18 pm on Tuesday, 2 June.  There is CCTV footage depicting you and the complainant.  It shows the complainant affected by drugs, barely able to stand and laughing hysterically.  You and she enter the bungalow. 
8	At about 3.50 pm, her boyfriend entered the bungalow.  He saw the complainant slumped over in a corner of the bungalow and face down on the floor.  She appeared to be lying down or unconscious.  Her tracksuit pants were pulled down to around the area of her thigh, exposing her backside.  Her boyfriend saw you with your tracksuit pants pulled down, lifting up the complainant's hips and thrusting at her.  He observed you and complainant were close together, although he could not see your penis.  In his opinion, and based on what he observed, he believed you were having sex with the complainant.  These circumstances constitute part of Charge 1. 
9	Her boyfriend yelled at you, 'Are you seriously fucking my girlfriend in my own house'.  Two which you said, 'Yeah so'.  The complainant heard this exchange clearly and felt like she was having an out of body experience, where she was in a dark room, you were holding her down, masturbating and ejaculating all over her face while she screamed for help. 
10	Her boyfriend said to you, 'You wait cunt'.  He went back inside the house and grabbed a knife.  He told the complainant's father what was happening and that he was going to stab you.  Fortunately, her father persuaded him not to stab you.  He put the knife down and went back to the bungalow. 
11	At about 3.53 pm, he re-entered the bungalow and saw you sitting in a camp chair and holding the complainant to the side of her head, around her ears and jaw and forcefully making her perform oral sex on you.  The complainant could feel your penis in her mouth.  She felt as though she could not do anything to stop it and could not move.  This is the other part or occasion of Charge 1. 
12	The complainant's pants were still part way down her legs and your pants were pulled down to your feet.  Her boyfriend saw her legs bent at a weird angle, her arms limp at her sides, and she was not making any noises or appearing responsive.  In his opinion, she appeared to him to be unconscious. 
13	At about 6.30 pm on 7 June 2020, you went to the Morwell police station.  This had been arranged by your lawyers.  You were arrested and interviewed the next day.  You made a 'no comment' interview.  You were charged and remanded in custody.  You have remained in custody since then.  
Personal 
14	You are now 46.  You were born and raised in Frankston.  You have a younger sister.  You retain a good relationship with your mother but not your father or your sister or her three daughters. 
15	Your education finished during Year 10 at a technical school.  You undertook and completed an apprenticeship in roof tiling.  For the next 17 years you worked as a roof tiler.  After 17 years, you found the work too taxing physically and you wanted a change.  You obtained work as a labourer in the building industry.  After your partner died, your drug use became extreme.  You became unreliable as a worker and left that employment.  You returned to roof tiling and did odd jobs.  You managed on the money from those jobs and Centrelink payments. 
16	You left home at 18 to live with your then partner.  This was an 'on again-off again' relationship which ultimately ended and saw you return to your parents' home at the age of 21. 
17	At 25, you left home with another partner.  You and she bought a home.  You have a son, aged 18 and a daughter, aged 16. 
18	This relationship lasted for 11 years until your partner died suddenly from a staphylococcal infection.  After her death, you discovered she was in another relationship.  This added to your anguish and grief. 
19	Your life collapsed.  Your use of drugs increased.  Your children went to live with your parents.  Your house was damaged by fire.  Despite your efforts, the house was sold by a bank. 
20	You formed another relationship.  Like you, your new partner was an alcoholic and drug user.  The relationship lasted for eight years.  It ended when she obtained a Family Violence Intervention Order against you. 
21	You returned to live with your parents and were living there when you committed this offence even though you were visiting Morwell at the time. 
22	You started using cannabis daily from 15 until you were 20.  You started drinking alcohol at 16.  You started using ecstasy, amphetamines, and hallucinogens from 18.  You tried cocaine at 18.  You used methylamphetamine daily from the age of 28.  And you told the psychologist, Ms Cidoni: 
'…At his worse he reported using 1.7 grams in three days. He said he was constantly on it and would go to work under the influence. He said he couldn't get out of bed without it, but he kept his addiction a secret from everyone. This continued up until his incarceration…'
Psychologist 
23	Gina Cidoni is a psychologist.  On 16 and 17 May 2022, she interviewed you at the request of your solicitors.  She took a detailed history from you.  Much of what I know of your background comes from that history. 
24	You undertook three psychological tests at Ms Cidoni's request.  From the first test called Brief Cognitive Status Exam, she concluded you were in the low average range.  It seems this test does not evaluate intelligence but rather other forms of cognitive functioning.  Relying on the results of two other tests and her interview, Ms Cidoni diagnosed you as suffering from Major Depressive Disorder and Generalised Anxiety Disorder.  She also diagnosed two other substance related disorders which were in remission because you are in prison.   
25	Ms Cidoni described the characteristic symptoms of the depressive and anxiety disorders, concluding: 
'This complex interplay of his psychological disorders and solace and escape seeking through drug use sent him on a severe decline over a number of years. His continued drug use is linked to his mental illness, that was employed as a form of escape and self-medication.' 
26	She concluded your risk of sexual re-offending was low and recommended three areas of treatment:  psychological therapy to help you manage your symptoms; medicines; and drug treatment. 
27	Finally, Ms Cidoni feared if you did not seek help in prison, your mental health would decline and you would be at risk of self-harm. 
Discussion 
28	Section 5(1) of the Sentencing Act 1991 (“the Act”) sets out the purposes for which sentences may be imposed.  They are: 
(a)	to punish the offender to the extent and in a manner which is just in all of the circumstances; 
(b)	to deter the offender or other persons from committing offences of the same or a similar character; 
(c)	to establish conditions within which it is considered that the offender's rehabilitation may be facilitated; 
(d)	to manifest the denunciation of the type of conduct the offender engaged in; 
(e)	to protect the community from the offender. 
29	Each of these purposes is relevant in your case.  Deterring others from committing the same or similar offences is a very important sentencing consideration for the offence of rape.  I would not necessarily describe it as the dominant purpose.  Whether it is so depends on the particular case.  The counsel for the Director, Mr Sonnet submitted: 
'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 rights and freedoms. This significant impact of rape on the victim needs to be given proper weight in the sentencing process'. 
30	He quoted a passage from Gray (a pseudonym) v R.  Although the passage is composed in light of the facts of that case, it does highlight the point he made in the above quoted passage.  Clearly also, denunciation of your conduct is important. 
31	Deterring you from committing this offence or a similar offence is also important.  Closely related is protecting the community from you.  Rape and other similar sexual offences cause significant, long-lasting harm on the victims.  As best as can be done, my sentence should deter you from raping again or committing similar offences.  If it does, then the sentence has achieved the purpose of protecting the community. 
32	None of this overlooks rehabilitation.  If it is achieved then the purposes of specific deterrence and protecting the community are satisfied.  If rehabilitated, then you will not re-offend in a relevant sense.
33	Section 5(2) of the Sentencing Act sets out matters to which I must pay regard where relevant.  
Nature and gravity of the offence 
34	The prosecution submits this is a serious example of rape because the charge comprises two kinds of penetration; you took advantage of the complainant while she was vulnerable, in that she was unconscious or semi-conscious, and you knew that; the second act of penetration occurred after being detected committing the first and warned by the complainant's boyfriend; the overall duration was not fleeting; and the act of penile/vaginal penetration was unprotected.  
35	In relation to those submissions, I consider the complainant's vulnerability due to her lack of consciousness is an aggravating factor of the rape.  The second act of penetration after her boyfriend's discovery, in the context of a rolled-up charge, elevates the seriousness of the offence by showing your determination to offend.  The duration was long enough to enable the boyfriend's discovery, a very brief conversation with you, returning to the house to obtain a knife, to have discussion with the complainant's father and then return to the bungalow and find you committing the second act of penetration.  There was some force used by you for each act of penetration because of the inert state of the complainant.  She suffered no physical harm.  There is insufficient evidence to justify a finding of that the first act of penetration was unprotected.  The fact that the boyfriend did not see evidence of protection on his return is explicable in ways other than its absence. 
36	Your counsel submitted that there is no evidence explaining the events immediately preceding these acts of penetration.  That is so.  Neither you nor the complainant can recall.  All that means is there is a gap in the evidence from which no inferences can be made.  One simply does not know.
37	I consider the offence of rape in this case was in the middle range of seriousness.  There were two acts of penetration.  The complainant was vulnerable.  The length of the offending adds little.  There was no actual physical injury, although significant psychological damage has been done.
Culpability  
38	Mr Sonnet submitted your drug addiction is a relevant sentencing consideration in that it explains the circumstances of your offending and prevents a finding that your conduct was premeditated.  Although it could be said the second act of penetration possesses an element of premeditation, I accept his submission regarding both acts. 
39	He submitted your intoxication at the time should not mitigate my sentence in any significant sense.  He did not submit it was an aggravating factor. 
40	Your counsel submitted the combination of your vulnerability and your psychological state has led to your entrenched addiction and your use of drugs leading up to the offending is not a meaningful exercise of free will and thus reducing your moral culpability.  No doubt, he relied upon the passage I quoted from Ms Cidoni's report.  The concluding words from that passage are: 
'His continued drug use is linked to his mental illness, that was employed as a form of escape and self-medication.' 
41	Generally, an addiction to drugs does not mitigate the offending.  The general proposition is stated in the case of Radenbach, which was cited in the case of Martin, to which Mr Sonnet drew my attention: 
'Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where the condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence...' 
42	Since your addiction is well-entrenched, your counsel raises the extent to which you were truly exercising your free will when offending. 
43	Judging from your criminal history, your addiction has been associated with at least some of your criminal behaviour.  Through your earlier offending and the sentences imposed, you knew you must address your addiction to avoid future criminal behaviour.  You were given opportunities to do so through the community correction orders.  You did not take those opportunities.  
44	Your intoxicated state was self-induced.  Your drug taking started during the night of 30 May.  It continued on 1 June and on 2 June.  You and the complainant took drugs together on those days.  On 2 June, the complainant was adversely affected by drugs, as were you.  I do not accept your counsel's submission that your moral culpability is reduced because your drug-taking and consequent offending was not truly an exercise of free will.  The problem started earlier than 30 May.  Your addiction was longstanding, and you did little about it.  I see no reason to reduce your level of moral culpability, which I consider to be high. 
45	In passing, I note you do not rely on any of the propositions in the case of R v Verdins.
Standard Sentence Scheme 
46	On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence contained in the charge of rape is one such offence.  The standard sentence for that offence is 10 years' imprisonment.  What is the meaning of a standard sentence? 
47	First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing. 
48	In Victorsen v R, the Court discussed the standard sentence scheme.  At paragraph 18, it said:
‘In Brown, this Court said that a judge
when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:
•    is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
•    does not affect the established ‘instinctive synthesis’ approach to sentencing;
•    does not require or permit ‘two-stage sentencing’; and
•    does not otherwise affect the matters which the court may, or must, take into account in sentencing.’
Criminal history 
49	Between 2 August 1995 and 20 September 2018, you have appeared in a criminal court to answer criminal charges on seven occasions and have been convicted or found guilty of 44 offences.  Your last five court appearances started on 7 April 2015.  
50	You have been placed on two community correction orders.  The first was made on 2 May 2016.  The offending included stalking and contravening a Family Violence Intervention Order.  The period of the order was 18 months and included a condition regarding drug abuse or dependency.  You contravened this order and the charge of contravention was determined on 
31 October 2017.  The order was varied to, in effect, restart on that day. 
51	The second order was made on 31 October 2017 for offences including burglary.  Its duration was 24 months.  Its conditions included a condition regarding drug abuse or dependency and a condition regarding alcohol abuse or dependency.  You contravened the conditions of this order and the previous order again and were sentenced to terms of imprisonment.  These were your only sentences of imprisonment and the total effective sentence of four months' imprisonment was imposed. 
Victim impact statement 
52	On 27 May 2022, the complainant made a victim impact statement.  She paints a dreadful picture of the effect of your offences upon her.  The opening paragraph of her statement provides a summary of the effect: 
'I haven't felt 100% like myself since. It's been a really emotionally traumatic couple of years. The damage it caused my mental state overall, has impacted my life in the worst type of ways'.   
53	One of the ways your offence has affected her is social isolation.  In her words: 
'I once actually loved the company of others, now I sometimes struggle to make the effort with my own family and friends and socialise at all. I'll completely isolate myself from anyone.'  
Current sentencing practices
54	My attention was drawn to a large number of appeals and sentences dealing with rape since the start of the standard sentence scheme. And I record the names of those cases in a footnote to these sentencing remarks.  I found them quite helpful.
Guilty plea 
55	Although pleas of guilty were not entered until 15 March 2021, you offered to plead guilty to the most serious charge in late 2020.  Overall, I consider your pleas of guilty to these charges were made at an early opportunity. 
56	In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed.  At the very least, it avoids the need for a trial.  This saves the time and expense of a trial.  It allows other trials to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses and most likely for the complainant in this case.  These reasons for the mitigation of the penalty are well-known in legal circles, but I doubt they are well-known outside of legal circles or the additional mitigatory effect of a guilty plea made at this time.   
57	Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in a case of Worboyes v R to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the Court's judgment which shows the emphasis it placed on pleas of guilty in this time of restriction: 
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’
58	The timing of the plea and the circumstances in which it is made means they result in a very significant discount on the sentence I would otherwise have imposed. 
Prospects of rehabilitation 
59	As to your prospects of rehabilitation, Ms Cidoni recommends three areas of treatment.  Since a copy of her report will be provided to Corrections Victoria, I expect each of the areas will be addressed to some extent.  Accordingly, there may be some optimism that upon your release you will have made progress in your rehabilitation. 
60	Second, my sentence is far and away the longest sentence of imprisonment you have received.  It should encourage you to reform by deterring you from future criminal behaviour. 
61	Third, you have a longstanding addiction to drugs. You have been a consistent user of methylamphetamine since you were 28.  Such an addiction will be difficult to overcome. 
62	Overall, your prospects of rehabilitation are slightly positive. 
63	Your counsel invited me to impose a non-parole period less than 70 per cent of the head sentence.  I may do so in the interests of justice.  However, I do not consider it is in the interests of justice to impose such a lesser non-parole period.
Conditions in custody 
64	All of your time in custody has been spent in a prison environment where there have been restrictions due to the pandemic on what you can do or who you can see or contact.  Restrictions of some sort can be expected to continue.  Your time in custody has been and will continue to be more difficult than would normally be the case.   
Sentence 
65	On the charge of rape, I sentence you to six and a half years' imprisonment.  I will set a non-parole period of four years' and seven months' imprisonment. 
66	I declare the 725 days of your pre-sentence detention as time served under my sentence. 
S6AAA Declaration
67	If you had not pleaded guilty to the offence but had been found guilty after a trial, I would have sentenced you to nine and a half years' imprisonment with a non-parole period of six years' and eight months imprisonment. 
Standard Sentence Departure 
68	My sentence is less than the standard sentence for rape.  I have considered the objective circumstances of the offending, including its effect on the victim, the circumstances personal to you and the guidance given by the various matters I have discussed including the guidance given by the standard sentence.  As can be seen from my s6AAA statement, your plea of guilty in the current crisis has played a significant role in my reaching the ultimate sentence.  
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