DPP v Esler [2022] VCC 1788

1. Your personal history is set out in the report of psychologist, Christine Kennedy, tendered on your behalf at the plea hearing. You are the second child in a family of four boys. You told Ms Kennedy you grew up in a family where the children received lots of love and encouragement. Your father was employed as a surveyor and your mother as an accountant, and later a teacher. You recalled lots of large happy gatherings with extended family but stated that both parents ran the household in an authoritarian manner.
2. You attended school to the end of Year 12 following which you worked in a number of low skilled jobs before commencing a Bachelor of Business degree, majoring in Finance. You completed your degree over six years and supported yourself by working with disabled children, working at the Australian Taxation Office, and as a surveyor's assistant. Following the completion of your degree, you obtained work as a manager in a brokerage firm. That position ended after four years of employment at the beginning of 2021 due to changes within the company and factors connected to the COVID-19 pandemic. You have not engaged in paid work since then due to your anxiety concerning the pending court case, but you did manage to engage in some unpaid work for a start-up venture.
3. You began drinking alcohol as a 15-year-old and would, in your words, 'get plastered once a week or once a fortnight'. You state that you have effectively ceased drinking alcohol since 2019 as a result of being charged with these offences. You told Ms Kennedy you seldom have more than one alcoholic drink.
4. You have had three significant relationships. The first ended after some two years when your girlfriend was killed in a car accident. You later were in a de‑facto relationship with another woman for approximately six years. You have been with your current partner since mid-2020.
5. Tendered on your behalf were 15 character references from friends and family. I will refer to some of the more significant parts of those references.
6. Your mother writes that you have always hated violence against women and has heard you express those views many times. She speaks of your helping nature towards others, including past girlfriends. Your mother refers to two incidents in which you went to the assistance of a woman in trouble. She states that you will receive the unqualified and unlimited support of your family and close friends.
7. Your father speaks of his shock and distress on learning of your convictions. He is not aware of any previous suggestion of you mistreating women in any way. He notes that you remain on good terms with former girlfriends and partners. He also speaks of your very strong work ethic and the work you have performed during and since the completion of your studies.
8. Your older brother states you have always been vocally critical of rapists, a defender of women, and you have always treated your girlfriends very well. He is aware of two instances where you went to the aid of women, at risk to your own personal safety. Your younger brother, Tim, considers that the charges of which you were found guilty are at odds with all he knows about you and your attitudes towards women.
9. Your fiancée has known you for two years. She attended court throughout your trial and describes you as honest, loyal, and trustworthy. She states you have never been violent or used force during your relationship. On the contrary, you have treated her with great respect, consideration, and care.
10. Your friend, Ms Baker, whom you have known for some 17 years, wrote of an occasion you went to her aid and ended up being assaulted yourself. The matter was reported to police, proof of which I have been provided. She considers your offending as being completely out of character.
11. Jennifer Mahon has known you for 26 years when you befriended her son at school. She states you have consistently demonstrated a complete understanding of boundaries and full respect for everyone in her home, including her daughter. Her son, Joel, considers the charges as highly contrary to your moral principles and behaviour demonstrated over 26 years of friendship. He has witnessed your relationships over the years noting that your former partners still consider you a close friend and that you have always been strong in your defence of women. Ellen Mahon states she has spent much time in your company, in many different social situations. She has only ever seen you behave in a respectful and thoughtful manner towards women and considers you to have been a protective and gentle person in her life. You have helped her through a health issue and through a relationship issue.
12. Monica Egan gave evidence on your behalf at trial and has also provided a character reference. She is a former partner and throughout the seven years in which you lived with her and her two daughters, she states you proved to be a kind, trustworthy, dependable and principled man. Ms Egan also states she always felt safe, respected and protected by you. She confirms you have maintained your relationship with her and both her daughters, as well as providing for them financially when required. She describes you as a positive, reliable male role model in the lives of her two daughters.
13. Your aunt, Mary-Anne, states she was extremely shocked to hear of your offending, it being entirely inconsistent with the man she knows. She describes you as a loving partner in the relationships she has observed and considers your convictions to be entirely out of character. Your aunt, Kate, writes of your intelligent and empathetic attitudes. Your uncle, Rodney, states that he and his family members were astounded to hear the news of your convictions. This is particularly so given his knowledge of your assistance provided to women who were in situations of danger.
14. Richard Essers has known you since you were both very young children. He has always found you to be loyal, considerate, and respectful towards family, friends and even strangers. You share an extensive circle of friends, and he has known you to put yourself in harm's way in defending others. He has never seen you act maliciously, nor has he heard you doing anything untoward to anyone, particularly members of the opposite sex.

1. Mr Fisher, who appeared with Mr A Norris, on behalf of the Director of Public Prosecutions, submitted that the objective gravity of your offending, and your moral culpability, are high. He relied on the following matters in support of that submission:

(i) You met Ms Rogers for the first time on the night of the offending, and nothing had occurred to suggest that she was in any way interested in having any sexual relations with you. > > (ii) Ms Rogers went to bed because she was affected by alcohol and did not even say goodnight to you or Ms Leon. > > (iii) Following your unsuccessful attempts to engage in sexual activity with Ms Leon, you left her room but before doing so, asked if you should say goodnight to Ms Rogers. Ms Leon told you not to do that. > > (iv) Notwithstanding Ms Leon's advice, you went into the victim's bedroom uninvited. It was the early hours of the morning and Ms Rogers had been asleep in bed for some hours. > > (v) Ms Rogers was asleep when you commenced your sexual assault upon her. You continued your conduct after she awoke to you performing oral sex upon her. She was vulnerable. > > (vi) The jury verdicts establish that you were aware Ms Rogers was not consenting to sexual penetration in both instances. > > (vii) You did not use a condom when you penetrated Ms Rogers with your penis. > > (viii) The episode, consisting of two acts of sexual penetration, occurred over a number of minutes, as opposed to a brief or fleeting contact. > > (ix) There is no psychological or psychiatric disorder that impacts upon your moral culpability, nor is it relevant that you were intoxicated at the time you committed the offences. > > (x) You maintain your innocence and have not expressed any remorse for your conduct.

2. The offence of rape carries a maximum penalty of 25 years' imprisonment, and a standard sentence of 10 years applies. Rape is also a Category 1 offence and, as such, I must impose a custodial order.
3. Ms Rogers read her victim impact statement in open court. Mr Fisher submitted, and I accept, that the statement is powerful and speaks eloquently of the impact your offending has had on her. I have had full regard to that impact on Ms Rogers as a matter relevant to sentencing.
4. Ms Rogers stated it is hard to put into words the ways in which your conduct has robbed her of the joy to be alive and has so dramatically changed the direction of her life and future. Her words, she said, will never truly convey the grief, suffering and desperation your conduct has had upon her. She stated that she has been suicidal as a result. She experiences nightmares of her house being broken into and strangers entering her room at night. As a result, Ms Rogers has become hypervigilant.
5. Ms Rogers stated her emotional reaction got to the point that she commenced counselling and was placed on antidepressant medication. Her financial position was also impacted because of her inability to work and because she was spending money on therapy, workshops and medication. Ms Rogers concluded her statement in the following terms:

'Three years of my life have been stolen before my eyes. Three years later and still to this day I experience adverse effects from the assault and one of the saddest things is, I know this living nightmare is still not over.'

1. Mr Fisher submitted that when you offended, Ms Rogers was completely vulnerable and helpless, and you took advantage of that situation. Moreover, the offending occurred in the victim's home, the very place in which she was entitled to feel safe and secure. The fact that you offended metres away from where Ms Leon lay asleep in her bedroom, revealed an element of brazenness to your offending.
2. Mr Fisher submitted that while all principles of sentencing apply, that of general deterrence should loom large in the sentencing process.
3. In oral submissions, Mr Fisher submitted that the fact that the offending was of short duration does not detract from the seriousness of your offending. He pointed out that the offending occurred in the context of there being no suggestion of any prospect of intimacy or a romantic interlude, and that when you stopped one act, that is the oral penetration, you then proceeded with the next act of penile penetration.

1. Mr Lavery, who appeared on your behalf, relied on a number of factors which, he submitted, reduce the gravity of your offending and your moral culpability. In relation to the offending, Mr Lavery relied upon the victim's evidence both at committal and at trial, that following the cessation of the sexual activity and you being told to leave, according to the victim, you appeared surprised. It was submitted that you may have held a belief that the victim was consenting but, consistent with the jury verdict, it was not a reasonable belief. Such a belief on your part, was also consistent, it was submitted, with the evidence concerning your state of intoxication.
2. Mr Lavery submitted that it could not be said, based on the evidence, that you had an intention to commit the rapes before entering Ms Rogers' bedroom. He described your conduct, once you entered the bedroom, as opportunistic offending that was not, in any sense, protracted. He submitted it was of short duration. It was not, Mr Lavery submitted, offending that was premeditated or planned. Any intention you held was formed close to the events constituting the offences.
3. Mr Lavery also submitted that the offending did not involve any threats, threatening behaviour, violence (beyond the violence inherent in the offences themselves), use of weapons or other humiliation. You offended alone against a person of similar age and the offending did not occur in the context of family violence. Mr Lavery referred to a number of cases that involved rapes of a sleeping victim and that are relevant to current sentencing practice.
4. It was submitted by Mr Lavery that each rape charge falls at the lower end of the range for seriousness, adding that each penetration was of short duration and was voluntarily discontinued by you. He submitted that the incident occurred in circumstances where your judgment was adversely affected by the alcohol you had consumed and that such misjudgement was evidenced by the fact that you attempted to engage the complainant in conversation and activity both during and immediately after the offending. He reiterated that you discontinued when you were told to stop and shortly thereafter you left the room.
5. Mr Lavery also relied on the fact that you have no relevant criminal history nor any other matters pending. You have used the period between your offending and the date of plea to rehabilitate yourself, particularly in changing your drinking habits. The character references tendered on your behalf establish you have previously been a person of good character.
6. Mr Lavery tendered on your behalf a psychological report of Christine Kennedy, dated 4 October 2022. Ms Kennedy is of the opinion that you satisfy the DSM-5 TR diagnostic criteria for Generalised Anxiety Disorder and for Major Depressive Disorder. You also displayed symptoms of Post-traumatic Stress Disorder. It is also her opinion that you represent a low risk of reoffending.

1. Rape is an inherently serious offence. This is reflected by the 25-year maximum penalty that may be imposed.
2. Rape often has a devastating impact on a victim's emotional and psychological wellbeing. The impact of your crimes were well expressed by Ms Rogers in her impact statement. She has been significantly affected by your offending.
3. In assessing the seriousness of your conduct, I have had regard to the submissions of both counsel and the matters on which each relied as to the nature and gravity of your offending.
4. I accept your counsel's submission that your conduct may be regarded as opportunistic. In this regard, I consider that upon you entering the bedroom and seeing Ms Rogers in bed asleep, in your intoxicated state, you decided to take advantage of her for your own sexual gratification. She had not done anything before this to suggest she was in any way interested in sexual activity with you.
5. I am not, however, able to find that your offending was planned or premeditated.
6. I accept that your offending did not involve any other acts of violence beyond that inherent in the very act of rape. Your offending did not involve threats or the use of weapons. There were no specific acts of degradation or humiliation beyond those constituting the offending. You acted alone. The period of time over which you offended would appear to have been of relatively short duration. With the exception of a minor abrasion, Ms Rogers did not suffer any other physical injury. Each of these matters are relevant to the assessment of the objective gravity of your offending. However, I am not prepared to find, as was submitted by your counsel, that you held a belief, albeit an unreasonable one, that Ms Rogers was consenting. I accept Ms Rogers' evidence that she awoke with you performing oral sex upon her. That is, you commenced your offending while she was asleep. In that circumstance, it is difficult to find, on the balance of probabilities, that you held such a belief.
7. Ms Rogers was in a vulnerable position when you commenced your sexual assault upon her. She was in her own bed asleep when you entered her room and commenced to perform oral sex upon her. She was entitled to feel safe in her own home and in her own bed. The seriousness of your offending on Charge 2 is aggravated by the fact that you were not wearing a condom at the time of the penile penetration. You exposed Ms Rogers to the risk of pregnancy and infection.
8. I accept that you discontinued all sexual activity upon Ms Rogers telling you that you needed to stop and leave. You then rolled to the side of the bed, lay there for a short period, before getting up, dressing and leaving the room.
9. Notwithstanding the competing submissions of counsel concerning the objective gravity of your offending, and acknowledging the difficulty in making such a determination, I consider your conduct on both charges falls towards below the mid-range level of seriousness. Your state of intoxication might somewhat explain your behaviour, but it provides no excuse. Although you were affected by alcohol, you were sufficiently cognizant to ask Ms Leon whether you should say goodbye to Ms Rogers, to tell Ms Rogers to remove her bra, and to suggest that she think of her cat's name, which you knew was [omitted], as you were forcing yourself upon her. Your moral culpability, in my opinion, is moderately high.
10. You have not previously been in trouble with the law, nor have you been in any trouble since the commission of these offences, some three and a half years ago. I have regard to the delay between your offending and ultimate sentencing and acknowledge your efforts during that time to cease alcohol abuse. You have also had these charges hanging over you for a considerable period of time and I have little doubt that they have caused you a great deal of anxiety.
11. As is evident from the numerous character references, you are a person who has otherwise led a good and law-abiding life. I accept that your offending on this occasion was completely out of character. Indeed, a common theme in a number of references is that you were a person who respected women. It is difficult to understand, how at the age of 35, you came to commit these serious offences given your previous good character.
12. As to your prospects for rehabilitation, I accept you have significantly changed your drinking habits since the commission of these offences. You have been assessed as representing a low risk of recidivism. You come from a good family, and your family and close friends will continue to provide you with their support. Perhaps the only telling factor against what might otherwise be considered excellent prospects of rehabilitation is your denial of the charges and the absence of any evidence of remorse for your behaviour. Notwithstanding those two matters, I consider you have very good prospects of rehabilitation.
13. Mr Lavery submitted that you did offer an apology to Ms Rogers, but I am not persuaded that you apologised for your offending. The apology to which Mr Lavery referred, at p160 of the depositions, occurred during the pre-text call made on 15 April 2019. You told Ms Rogers during that call that you felt you had her permission each step of the way. Whilst you made some admissions, you did not admit your offending. You did not apologise for your offending. You pleaded not guilty, and clearly the jury rejected your denials of the offending.
14. In determining an appropriate sentence, I am required by s5 of the Sentencing Act 1991 (Vic) to have regard to a number of considerations in addition to your prospects of rehabilitation. These include deterrence, just punishment, denunciation of your conduct and protection of the community. I accept that deterrence of others and denunciation are significant sentencing considerations. I consider specific deterrence has limited application given your previous good character and my assessment of your prospects for rehabilitation. For similar reasons I do not consider that the need to protect the community from you is a factor that must attract much weight.
15. I also have regard to the fact that this is your first time in gaol and I accept Mr Lavery's submission that because of the COVID-19 pandemic, your time in custody will be rendered more burdensome. Adding to that burden are your diagnoses of Generalised Anxiety Disorder and a Major Depressive Disorder. Both these considerations call for some moderation of the sentence to be imposed.
16. The standard sentencing scheme applies to your case. The standard sentence for rape is 10 years' imprisonment.
17. I have taken into account the standard sentence as one of the factors relevant to the process of instinctive synthesis sentencing. Like the maximum sentence, the standard sentence operates as a guide to sentencing but does not alter the instinctive synthesis approach.
18. Section 5B(2)(b) of the Sentencing Act requires I only have regard to sentences previously imposed for the offence as a standard offence. I have done so. In addition to the cases to which your counsel referred, I have also had regard to a number of other sentencing decisions of this Court and the Court of Appeal.[3] Current sentencing practice is a factor to which I must have regard, but it is clear from the cases to which I have referred that the circumstances in which the offence of rape is committed, and their objective seriousness, vary widely, as do the personal circumstances of those who commit such offences. In the end, each case must be decided on its own individual facts and circumstances.
19. The sentence I am going to impose in respect of each offence you committed is lower than the standard sentence, having regard to my findings as to the seriousness of the offences you committed and each of the matters that weigh in mitigation of sentence.
20. In endeavouring to achieve an appropriate and proportionate sentence, I have also had regard to the principle of totality to ensure that the total effective sentence reflects your overall criminality and to ensure that the sentence is not crushing. The two offences of which you have been found guilty occurred over one relatively short continuous episode. It is appropriate, in the circumstances, that there be, as was submitted on your behalf, a significant level of concurrency, in the sentences to be imposed. Mr Esler, would you now please stand.

1. On Charge 1 you are convicted and sentenced to 5 years' imprisonment.
2. On Charge 2 you are convicted and sentenced to 6 years and 3 months' imprisonment.
3. I direct that nine months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2. This makes a total effective sentence of 7 years' imprisonment. Having regard to your prospects of rehabilitation, and the reduced need for specific deterrence and the protection of the community from you, I consider it is in the interests of justice that a non-parole period below the period required to be fixed by s11A(4)(c) of the Sentencing Act be fixed. I set a non-parole period of 3 years and 9 months' imprisonment.
4. Pursuant to s18 of the Sentencing Act the period of 64 days, not including today, is to be reckoned as already having been served under the sentence.
5. I was not invited to, nor do I make any orders, under the Sex Offenders Registration Act.

[3] DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Alanazi [2022] VCC 140; DPP v Hyeong-Beom Park [2021] VCC 2058; and DPP v Sapkota [2022] VCC 1466; DPP v Abdi [2020] VCC 1668; DPP v Kala [2021] VCC 151; DPP v Wright [2020] VCC 837; Wright v The Queen [2021] VSCA 243; DPP v Parra (a pseudonym) [2019] VCC 829; DPP v Dat (a pseudonym) [2020] VCC 344; Clarke ( a pseudonym) v The Queen [2022] VSCA 89; Saab(a pseudonym) v The Queen [2022] VSCA 116; Lockyer v The Queen [2020] VSCA 321; Drake v The Queen [2019] VSCA 293; Babar v The Queen [2022] VSCA 122.