DPP v Flancey [2021] VCC 1225 | Case summary

County Court of Victoria|2021-08-24

Sentence: 76 months imprisonment, non-parole period of 46 months

6AAA - 8 years, non-parole period of 5 years 7 months

2 The charge of Rape is a category 1 offence pursuant to the Sentencing Act 1991. The charge is a rolled-up charge.

3 It also attracts the operation of the standard sentencing provisions.

4 I must consider whether you ought to be registered under the _Sex Offender Registration Ac_t provisions. If I decide that you should be registered, then the period of registration is for life.

5 You admitted a prior matter of careless driving. It is entirely irrelevant to this matter, and I shall proceed as if you have no prior criminal history.

6 The Crown tendered the Summary of Prosecution Opening as Exhibit A.

7 The victim is Eliza Gillison[2], who was aged 25 at the time of the offending.

She worked as a real estate agent, and lived in a small town with her parents.

8 You were friends with the victim, having both grown up in the same small town.

9 On 14 March 2020, you were out drinking in your home town with some friends, including the victim. You took what you thought was cocaine. At 1:23 am, after the victim left to stay at her friend's house, you sent her a message via Snapchat asking her 'Where you at'. You realised you needed a phone charger so went to the house where the victim was staying to borrow a charger. The house was unlocked and you let yourself in. You walked into the room where the victim and Nathan Vallis[3], a mutual friend, were sleeping. Mr Vallis asked you what you were doing, then walked you back to his house where he provided you with a phone charger. When Mr Vallis left you, he could hear you talking to your girlfriend, Gemma Cudmore[4], on the phone.

10 Once your phone was charged, you called Ms Cudmore and walked to the house party she was attending nearby. You started to feel unwell and left.

At 2:12 am, you tried to call the victim on Snapchat, and at 2:42 am you sent her a Snapchat message saying 'I'll come back when he is ast (sic.) asleep'. The victim did not respond to your message.

11 You returned to the house where the victim was staying and went into her bedroom. While she was sleeping, you penetrated the external genitalia of the victim's vagina with your penis and then penetrated her anus with your penis. This is Charge 1 - rolled up charge.

12 The victim was woken up by the searing pain in her abdomen and anus.

She asked you, 'What the fuck are you doing?' and you replied, 'What do you mean?' The victim appeared frantic and upset and left the bedroom.

13 The next morning, the victim told her friend that you anally raped her the night before. She was still in a lot of pain and appeared to be in shock. The victim went to work where she also told a co-worker. Whilst at work, she received two Snapchat messages from you: 'What the fuck happened last night [with an emoji of a person with their hand covering their face]' and 'I am so sorry. I feel soooo bad today. I can barely remember last night and I have lost my fucking keys. I want to die'. She was sent home from work by her boss, as she was visibly upset. Once home, she told her parents what had happened and the matter was then reported to police.

14 A pretext call between you and the victim was conducted on 15 March 2020:

You apologised and told the victim that 'It's not me. I don't understand why this has happened'. When asked what you were sorry for, you told the victim it was for walking in on her and Mr Vallis;
You did not recall going to Mr Vallis's house and returning to the house where the victim was staying;

You had taken what you thought was 'coke' and believed that it impacted your ability to recall the night before and your actions;
You stated you were 'so upset about it'. When asked what 'it' was, you told the victim you had been told what had happened, you were scared, you could not piece it together and you felt the worst you had ever felt in your life; and
You told the victim you were disgusted with yourself.

15 On 15 March 2020, the victim was medically examined. There were no obvious injuries identified around the ano-genital region. You were found to be a contributor to a vulval swab taken from the complainant. You were excluded as a major contributor from all other samples taken.

16 Police attended your house on 16 March 2020, but no one was home. Police entered to search for you and found a note you had written expressing regret and remorse for your actions, and asking for forgiveness. The note was not addressed to anyone but appears to have been left for your partner.

17 You attended Wonthaggi Police Station by appointment, where you participated in a recorded interview. You did not deny the allegations and told police:

You could not recall what had happened;
You had drunk 'a lot', mostly beer, but also spirits;

You had taken what you were told was cocaine, and it 'just rocked [you]... [you were] like a zombie';

In relation to being at the house where the victim was staying for the second time, you only recall the victim asking you 'what are you doing?' and then leaving the house;
You woke up at Mr Vallis's house the following morning and did not know that anything had happened until Mr Vallis told you 'you've gone and raped Eliza'; and
Your apologies over Snapchat were for walking in when Eliza was in bed with Nathan.

18 You entered a plea of guilty at committal mention on 18 March 2021.

19 The sentence I impose on the charge of rape attracts the operation of the standard sentencing provisions.

20 I turn now to a consideration of the standard sentencing scheme.

The scheme provides for a standard sentence of 10 years on the charge of rape;
The scheme also provides for a standard non-parole period of at least

60 per cent of the sentence, unless I consider it is not in the interests of justice to do so;

The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;

Objective factors exclude consideration of matters personal to you as an offender or to a class of offenders. Rather, it is determined wholly by reference to the nature of the offending;
This does not limit the matters which I must or may take into account in determining the appropriate sentence. Nor is it intended to affect what is known as the instinctive synthesis process. The standard sentencing scheme may be considered as a guidepost in the sentencing consideration. However, it is neither determinative nor a starting point from which I must simply remain, or to go up or go down in my sentencing consideration;
In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing. In this way, it is an additional factor to consider in the sentencing process;
Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

21 I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. In doing so, I am mindful of the reasoning and principles enunciated in the Court of Appeal decision of Brown v The Queen ('Brown').[5]

22 The seriousness of the crime of rape is marked by the fact that it carries a maximum period of imprisonment of 25 years. Moreover, Parliament has characterised it as a category 1 offence, for which a term of imprisonment is inevitable in the absence of exceptional circumstances. Mr van de Wiel QC, who appeared on your behalf, premised his very succinct submissions on the basis that you must serve a term of imprisonment, and that there were no exceptional circumstances.

23 Also, as you are aware, Parliament has included this crime within the standard sentencing provisions.

24 In addition to these factors, I accept the Crown submission that the seriousness of your offending must take into account:

The offending occurred at around 3 am, when the victim was asleep;
You entered the home where she was staying, where she was entitled to feel safe and protected;

You were persistent in that you had texted the victim through the night. She had not replied; but in the words of your counsel, you tend to, and on the night, you assumed assent;

You had already been taken away from the house by Mr Vallis, but you returned anyway; and
In penetrating the victim's anus, you caused her significant pain and humiliation;
You did not use a condom, which potentially exposed your victim to disease.

25 As the Court of Appeal said in R v Mason[6], rape is an 'intensely personal crime' which affects the victim physically and psychologically. It attacks a victim's sense of self.

26 The victim impact statement of Ms Gillison was read aloud by Ms Goding at the plea. The victim stated that she no longer trusts anyone and does not feel safe anywhere. She is scared that you know where she lives and now keeps the doors locked, even during the day. She now feels anxious and scared in normal situations and finds it difficult to be around friends and family because she has withdrawn. Living in a small town and working have been 'really hard' for her. She has missed opportunities at work and has struggled to look after herself. She wakes up in the night and has traumatic nightmares. She feels 'extremely alone', 'unhappy in day to day life and severely depressed'.

27 As I stated at the plea, it takes real courage and integrity to lay bare the vulnerabilities that Ms Gillison now feels. I commend Ms Gillison for the courage she has shown in coming forward. I also point out that her words should make very real reason why this offence must attract stern punishment: the hurt and damage that you have caused to this young woman, who you have known for years, will likely stay with her for a very long time.

28 In short, your offending was objectively very serious and attracts principles of deterrence, denunciation and just punishment. On the material I have received, it is unlikely that you will offend again in this manner. I accept that you were highly intoxicated on the night. This is not an excuse and does not serve to mitigate your sentence in any way. I also accept, however, that you have taken some steps to address your drinking and drug taking; factors which may have contributed to your offending on the night. If this remains so, then I consider that protection of the community is a lesser sentencing objective in your case.

29 There are other factors which bear upon the assessment of your moral culpability. I shall return to this after I have considered your personal circumstances and the psychological material.

30 I turn now to a consideration of your personal circumstances.

31 You are 29 years of age, being born in November 1991. You grew up in a small town with your parents, who are still together. You have two older

half-sisters from your mother's previous relationship. You described your family as 'pretty ordinary' and denied any family violence, child abuse, sexual abuse, or substance abuse while growing up.

32 You attended a Primary School, then later moved to another, which 'wasn't too bad.' You were able to make friends but were 'shy and bullied'. Your learning in Primary School was 'okay' and you got in some trouble for 'being a clown a bit.' You attended a local High School, where you completed up to Year 10. You had a few friends at High School, but you were bullied. I received extracts from your High School Reports, which detailed your distracting presence in the classroom, difficulties in maintaining attention and applying the required commitment to your studies.

33 You then obtained a full-time job as an apprentice in mechanics. After completing your apprenticeship, you spent five years in your first job, and you were employed in your most recent position for eight years. You have been continually employed your whole working life.

34 You started regularly consuming alcohol at age 18, and became a 'heavy' drinker between the ages of 20 and 25. Your alcohol consumption has decreased since your offending.

35 You started smoking cannabis at age 17 or 18. You smoked cannabis daily from your early twenties until your mid-twenties. You used speed and ecstasy 'one or two days a weekend almost every weekend for a fair length of time.' You ceased taking drugs about a year ago and have provided drug screens.

36 You have had two meaningful relationships. The first commenced when you were 18 years old and lasted for five years. You have been with your current partner, Gemma Cudmore, for around five years. Ms Cudmore was diagnosed with lymphoma four years ago and continues treatments. You have supported her through her treatment.

37 Since your offending, you do not see your parents very often, and some friends have ceased speaking to you. You have avoided town and social events. Notwithstanding, you have strong family ties and friends who support your rehabilitation.

38 I have read the psychological reports of Dr Todd Jacobson, dated 12 August 2021, and of Ms Pamela Matthews, dated 3 August 2021.

would meet the following DSM-5 criteria for Autism Spectrum Disorder; Deficits in social and emotional reciprocity, such as the to and fro of conversation; Deficits in nonverbal interactions, particularly being able to read the nuances of nonverbal behaviour; Deficits in developing, maintaining and understanding relationships, particularly regarding conversational skills and a lack of interest or engagement in fantasy, for example, popular non-reality based television shows, books etc., or displaying interest or curiosity in another's interests.

Mr Flancey's symptoms would be classified as level One, formerly described as Asperger's Disorder.

The alternative diagnosis would be Social Communication Disorder.

40 Ms Matthews noted that you are currently suffering from an Adjustment Disorder with mixed Depressive and Anxiety Symptoms, and are currently taking mirtazapine, an anti-depressant medication.

41 Ms Matthews further noted that you suffer from social anxiety because you find 'managing social situations difficult', but you do not meet a DSM-5 diagnosis for Social Anxiety Disorder. Despite abusing drugs and alcohol over the past five to eight years, Ms Matthews would not diagnose you with a 'disorder' in this respect.

42 Ms Matthews does not believe that you have a 'paraphilic sexual disorder that would account for [your] rape of the complainant'.

43 Ms Matthews indicated that your risk of re-offending is four to five per cent over five years and that this risk will 'decrease significantly as [you] move into [your] mid 30s'.

44 Dr Jacobson, clinical psychologist, noted that you have consulted with him on 16 occasions between 12 January 2021 and 11 August 2021. You reported that you had been depressed for approximately three years, mostly in the context of your cousin having been killed in a motor vehicle accident. You also reported using drugs and alcohol which Dr Jacobson considered as an attempt to self-medicate. Dr Jacobson considered that you were significantly depressed and referred you to your GP who prescribed you antidepressant medication, which improved your mood substantially. Dr Jacobson also opined that you were on the autism spectrum.

45 I received and have read the eight character references, including the character reference provided by your mother. They tell of your remorse, and show that you are supported by a strong and loving network of family and friends, who worry deeply about you. They talk about your love of fishing, your passion for mechanics, your willingness to help others, and your hard work ethic.

46 Mr van de Wiel QC submitted the following factors should operate to mitigate your sentence:

You pleaded guilty at the earliest opportunity. Before that, you had acknowledged your guilt from the outset, and then made comprehensive admissions to, and cooperated with, police;
You have no prior convictions, you have a strong social and family support structure for your rehabilitation; you have a strong work history and a trade qualification;

Alcohol and drugs potentiated your condition at the time of the offence. Since this offending, you have refrained from drug taking;

Together, all of these factors should rate you as a low risk of reoffending. You have excellent prospects for rehabilitation.
Your partner, Ms Cudmore, is currently being treated for mycosis fungoides and lymphomatoid papulosis. You are worried about her and your separation from her;
Your autism spectrum disorder should operate to reduce your general and specific deterrence;
Your lack of ability to interact with others will make your imprisonment more difficult. There is a high risk you will be isolated and probably the victim of physical abuse;
Your current depression will also play a part in your difficulties in coping with prison;
Together these factors make the burden of imprisonment greater for you than the normal prison population

47 Mr van de Wiel gave examples of your reduced ability to understand and read social mores. As I have already stated, he referred to the example that, for your whole life, you have assumed assent on the part of other people. Next, he gave the example that you may speak obsessively and continuously on a topic without realising that those around you have already grasped your point and are ready to move on. Still, you keep going back to the same topic.

48 It is apparent, however, that you are able to function and proceed through life - you have a job, you are in a relationship and you live independently.

49 By way of explanation of your offending, and the fact that you believed that you blacked out, Mr van de Wiel posited that you may have been suffering from the effects of cocaethylene - the result of using alcohol and cocaine at the same time, which is hypothesised to produce more powerful effects than either alcohol or cocaine alone. Essentially, you have been looking for explanations or reasons why you acted as you did it.

50 Ms Goding, who appeared for the Crown, submitted that this offending was an example of relatively serious offending, taking into account the circumstances I described earlier.

51 The Crown conceded that the offending lacks certain aggravating features which are present in other offences of rape. Notwithstanding this, the Crown cited the Court of Appeal in Brown[7] which stated that the assessment of the objective gravity of the offence, and of your moral culpability, must be made on the basis of what actually happened, taking into account the relevant features of the offence as committed, and not on the basis of what is not present.[8]

52 The Crown submitted that your intoxication and illicit drug use do not excuse your conduct; nor did Mr van de Wiel say that it did.

53 The Crown conceded that the following are matters in mitigation:

Your early plea of guilty, and full and frank admissions during the record of interview;
Your lack of relevant prior convictions;

Your history of employment and support reflect upon your prospects of rehabilitation and future risk of reoffending; and

Verdins limbs 5 and 6 have some application in the present case.

54 I conclude that your plea of guilty not only has utilitarian benefit but also facilitates the course of justice. In my view, your plea and your actions in the days immediately after you committed this offence demonstrate remorse and insight. Moreover, your efforts to refrain from drug taking and curbing your alcohol intake further demonstrate that you take this process seriously.

55 I further conclude that you have very high prospects of rehabilitation. You have a strong work history, a good trade qualification and a good family and social support network. As I just mentioned, your efforts to refrain from drug taking and reduced alcohol consumption also provide some reason for optimism.

The experience of this Court is that your own efforts should continue to be supplemented by professional intervention and counselling. I accept Ms Matthews' testing indicates that your risk of reoffending is calculated at 4 to 5 per cent over five years, placing you in the average range for sexual re-offending risk.

56 In my view, any reduction in general deterrence resulting from your Autism Spectrum Disorder could be only very slight. Ms Matthews considers that your offending occurred during an alcohol blackout which, from the studies, begin to occur with a very high blood alcohol level (which she notes as about 0.16 per cent). Ms Matthews considers that you seemed to have suffered 'disinhibited behaviour and fragmentary alcohol blackout'; a condition which was out of character for you as a person reporting high levels of social anxiety. Ms Matthews considers that your Autism Spectrum Disorder contributed to your high alcohol use, but then considers it would be difficult to say if you misread social cues, failed to heed social cues or mistook the complainant for your partner.

57 Ultimately, I conclude that Ms Matthews considers your offending took place in circumstances of high alcohol intoxication, which was exacerbated by your drug use. It seems your Autism Spectrum Disorder may vaguely have provoked your drug and alcohol use, but it cannot be definitively and directly linked to causing your offending behaviour.

58 I can only conclude that your moral culpability for your offending is high.

59 Your Autism Spectrum Disorder, or alternatively Social Communication Disorder, and extreme anxiety in social settings will undoubtedly make your time in prison more burdensome than that of the general prison population. I am satisfied that principles 5 and 6 of Verdins are enlivened in your case and that I must take these factors into account in assessing the appropriate sentence to impose upon you.

60 Although I was not referred to any comparable cases during the submissions, I have read the Court of Appeal decisions of Beck[9] and Drake[10]. Although I consider the circumstances of your offending to be serious, the offending in those cases must be considered, for sentencing purposes, more serious than yours.

61 I have also considered sentences of Judges of this court in Abdi[11], Kala[12], Wright[13], Parra[14], Elwood[15], and Dat[16]. Whilst the circumstances in Kala bear some resemblance to your own, I consider your penetration of the victim's anus to be a more serious form of invasion to her integrity; further, the offender in Kala had a history of criminal offending and a less stable personal history than you. In the end, as I have already stated, I sentence you on the facts and circumstances of this case as I find them, and on your circumstances.

62 Registration under the Sex Offenders Registration Act 2004 is discretionary. The Court may only make a registration order if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community. The Crown does not submit that a registration order ought to be made.

63 I have taken into account the circumstances of your offending, the fact that you have no prior convictions and your prospects of rehabilitation. I am not satisfied to the requisite standard that you pose such a risk to the sexual safety of a person or persons in the community. I decline to make an order for registration under the Sex Offenders Registration Act 2004.

64 The sentence I am about to impose is lower than the standard sentence. After having identified and considered how the seven principles of the standard sentencing provisions apply in your case, and the other objective factors in this matter, I have determined that the following sentence is appropriate:

65 On the charge of Rape, you are convicted and sentenced to a term of imprisonment of 77 months. I order you serve a non-parole period of 46 months before you are eligible for parole.

66 I declare the period of 8 days pre-sentence detention, not including today, be reckoned as already served.

67 But for the plea of guilty, I would have imposed a sentence 8 years with 5 years 7 months to serve.

69 MS GODING: Yes, Your Honour. An updated version of that was filed yesterday, as I understand.

70 HIS HONOUR: Mr van de Wiel, anything to say on that?

72 HIS HONOUR: All right. Well thank you. I also want to again thank the complainant, Ms Gillison, for her participation in these proceedings today. I say again, it takes very great courage and you have approached this matter with great integrity. Thank you, we will now adjourn.