DPP v Kalofolias [2016] VCC 1532

4 On the materials before me she was not much of a drinker at all; rarely drank and had never been drunk. She had been drinking from a glass of Coke during her shift and had noticed that it had an unusual taste and was very flat. She had started to feel ill at the time she walked to the supermarket and by the time she got back from the supermarket to the restaurant she was feeling distinctly unwell, dizzy and lightheaded.

5 You let her in so that she could go to the toilet upstairs. She sat down on the floor after that feeling unwell and numb. She felt like she could not get up. She told you that she felt unwell and as if she was going to throw up. You sat beside her on the couch while she was sitting on the floor, then grabbed her right breast over her clothing. She told you to stop. You didn't. You said to her, "It's all right. No one is going to find out". You sat on the floor beside her, pushed her onto the floor, leant over her, put your hand up her T-shirt, pulled her bra down, exposed her left breast and over her protests and her physical resistance sucked her left nipple. She was unable to push you off although she tried. You then put your hand down her skirt and as she tried to pull your hand away and told you to stop, you overcame her resistance, moved your hand underneath her underwear and penetrated her vagina. She continued to tell you to stop. You inserted your finger into her vagina over her protests and over her attempts to pull your hand out. She throughout this time was feeling very unwell. She is not able to recall what happened after that or how she got home. Her next memory is waking up in bed, in her bedroom at her home vomiting into a bucket.

6 Her then partner's mother was at home when you accompanied the victim home that evening. Her partner's mother answered the door, saw that the victim was upset and saw her go straight from the doorway into the bathroom. You said to her that the victim had had too much to drink and left. The victim immediately complained to her partner's mother that she felt sick, and that she felt she couldn't move. A short time after you left, you came back to the door of the house, handed over the victim's phone and left again.

7 The complainant was very unwell. She vomited and remained in the bathroom for about an hour before her partner's mother could move her to the bedroom. She continued to vomit. She told her partner's mother that she had not been drinking alcohol, that she had only drunk diet Coke. She also told her that something inappropriate had happened with you. That led the mother to ring the victim's partner who was at work. He came home. He also made observations of the victim being in and out of awareness. She repeated to her partner what she had already told his mother. Police and ambulance were called. Swabs taken from the victim's left breast later matched DNA taken from you and blood and urine samples taken from the victim later revealed a considerable concentration of alcohol in her system.

8 Although it is the complainant's account that she did not knowingly drink any alcohol and that she believes her drink was spiked, you denied spiking her drink and told the police the two of you had been drinking alcohol together. I want to make it very clear that the basis upon which I sentence you is that although the complainant's account is that she did not knowingly consume alcohol and that her intoxication can only be explained by spiking her drink; the coke that she had been drinking at work, the prosecution does not assert that it can prove beyond reasonable doubt that in fact you did spike her drink.

9 You were arrested by the police a couple of days later and questioned. When questioned you denied any sexual activity occurring with the complainant, said that the two of you had been drinking together and said that, in effect, she had initiated sexual or salacious behaviour by showing you her tattoos, lifting her dress up, showing you a tattoo on her thigh and another between her breasts. You told the police that you had no interest in the victim, that you did not want for female company whenever you wanted it. You suggested that the victim had not only made overtures to you but that you had been repelled by that and you wanted her to be charged as a result.

10 It was not until after the DNA results had been obtained and provided in the lead up to trial that you filed your defence response and changed the account from that given in interview to asserting that there had been sexual activity but it had been consensual.Ultimately, on the second day that that matter was listed for trial, and immediately before a jury was about to be empanelled you pleaded guilty to this one charge of rape. You had also initially been charged with sexual assault of the complainant in relation to the touching of her breast and the sucking and licking of her nipple. As a result of your offer of the plea of guilty to the charge of rape, the charge of sexual assault was not proceeded with. But the circumstances in relation to the touching of her breasts are part of the surrounding circumstances I take into account in considering the gravity of the rape offence.

11 A victim impact statement has been provided by the victim and what she says is an entirely understandable range of responses to a violation of this nature. She said, "I couldn't leave the house, couldn't work. It affected my relationship with my now ex-partner. It affected how I felt about myself, I avoided as many people as possible because I was so worried all the time. When I left the house I was always looking over my shoulder, scared something would happen. I haven't gone alone to any place. It affected my sleep and I was having nightmares for a while".

12 All sexual violations are serious and features which add to the seriousness of this rape include these:

the rape occurred over the victim's protests and resistance her repeated clear and unequivocal indications that she was not consenting to what you were doing and wanted you to stop.

She was very young; she was only 18 and you were more than twice her age, at 44. The disparity in maturity and life experience between the two of you, that is between and 18 year old and a 44 year old is notable. Her adult life was just starting. You on the other hand, had lived through your late teens, the age she was, your 20 and 30s and were into your mid-40s.

13 She was, in effect, your employee. You were the son of the owner, and as she perceived it, the manager. So whilst legally your mother may have been the owner of the business, to all intents and purposes, she understood you to be the owner or a person in authority.

14 The rape occurred in her workplace, after customers and other employees had left. It is clear that all employees should be free from fear of sexual molestation in their workplace.

15 There was no evidence of any relationship other than that of employer/employee, older boss and young employee. There is no evidence that the two of you socialised and there is no suggestion of any mutual attraction before this night or even during this night in the lead-up. You knew that the victim was in a relationship and she knew you were, and that your relationship was with a co-worker and also a person in a position of authority at the restaurant.

16 The toxicology reports show that the victim had, even after the violent vomiting and some hours after the event, a significant amount of alcohol in her system; .06 in her blood, .1 in her urine.

17 You described her, when you took her home, and to the police as very drunk. Her partner's mother's observations are consistent with her being substantially intoxicated. So are her partner's observations. Although the prosecution accepts it cannot prove beyond reasonable doubt for the purposes of the plea that you spiked her drink it is clear that you were aware that she was drunk and took advantage of her in that state. The evidence does not permit me to make a finding one way or the other as to how she came intoxicated.

18 Some of the features which aggravate other rapes are not present here but the absence of aggravating features such as pre-planning, gratuitous additional violence, a protracted period of offending or exposure to risk of pregnancy or STD do not amount to mitigating features. There is a risk that listing the aggravating features which are absent can divert attention from a consideration of the gravity of the offending by diverting attention from the aggregation of aggravating features which are present in a particular case. It is that, the aggregation of the aggravating features present in a particular case not the absence of others, which provides the best guide to the overall gravity of the offending and therefore a determination as to where the sentence should sit.

19 Subject to considerations personal to you therefore, it is clear that denunciation, deterrence and just punishment are important sentencing considerations. Personal integrity, the right to have sex with whom a person wants and when they want is a fundamental right of every person in our society. Somebody who overbears and overwhelms that right in somebody else must understand that they face significant condemnation and denunciation and must be punished.

20 Dealing then with matters personal to you, you were 44 at time and you are now 45. Up until the age of 40, you had not been in trouble with the law. Your first court appearance was in 2013 when you were 42. That was for driving whilst suspended, possession of small quantities of cannabis and another drug and failure to answer bail. A year later you appeared before a court again, again for minor driving and cannabis possession charges, but on this occasion as well a charge of possession of a controlled weapon. A non-conviction result with a fine the first time, a conviction result with a fine the second time indicates that these were lower-end of the scale offences.

21 This then is a much more serious offence and of an entirely different nature. The previous charges, for which you have been dealt with in the Magistrates' Court, are not relevant to sentencing here, save to indicate that you do not come before the court as a first offender and save that they indicate that there has been a long-standing issue with substance abuse. You would call it use, but I would call it abuse.

22 Since being charged with this rape offence to which you have now pleaded guilty in September 2015, you have twice been sentenced in the Magistrates' Court, for offences committed after this. Again they are of a different nature, but they are more serious than the offences that brought you before the Magistrates' Court before this offence. In April 2016 you were dealt with for contravening a family violence intervention order, unlawful assault and wilfully damaging property, as well as failing an oral fluid test within three hours of driving. You were placed on a 12-month community correction order in respect of those matters.

23 Five months later, in September 2016, you were convicted again in the Magistrates' Court for contravention of a family violence intervention order, for making a threat to kill, for stalking, committing an indictable offence on bail and trafficking in methamphetamine. You were sentenced to a term of imprisonment of eight months in respect to the threat to kill, stalking, commit an indictable offence on bail, and one month concurrent on the traffic methamphetamine.

24 You have been in custody since September 2016, for the first time in your life, since you were sentenced on 15 September. I am told, and I accept, that it has been a salutary experience for you.

25 All this recent bout of offending and indeed the offending from the age of 42 sits at odds with your history up until the age of 40. You are a man from a stable family. Your parents moved to Daylesford when you were 12, established a restaurant there, and you and they have remained in that area ever since.. You and your mother, your father having died three years ago, are well embedded in the Daylesford community. She, with her husband, then on her own and you, first with your parents and then on your own account, established and ran a number of businesses Daylesford area and have strong connections within the community.

26 You worked first in your family's restaurant and then established your own businesses, a pizza franchise, a share in an automatic teller machine business, a restaurant not far away in Melton, and then in Daylesford a bed and breakfast or holiday cottage business. It would appear you might have extended yourself too much in relation to your restaurant in Melton and the bed and breakfast business. You hit financial difficulties, partly as a result of difficulties with the business you were not personally managing, and that led to the loss of both of those businesses because of your inability to service the bank loans.

27 You have, despite those difficulties, returned to assist your mother in the running of her business and have been of particular assistance to her since the sudden and unexpected death of her husband, your father, three years ago. The father's death has clearly been a significant event both for your mother and for you. Although you are a mature adult, I accept that you have been significantly affected by that, and she has too, and that you have been of great support to her both personally and in terms of assisting her in the running of her business since then. It is clearly that from around that time your criminal history occurred. That is probably not coincidence.

28 Three testimonials have been provided which speak of you in glowing terms. They support what was put to me generally on the plea about how well established you were in the Daylesford community, how well you and your family were regarded, and how much this offending that brings you before me today is seen to be out of character with the man your friends and colleagues knew. The man some of them trusted to stand in the role of employer to their own children when they started getting part-time and then full-time work as they left school and moved into the workforce.

29 Acknowledging that a sentence of imprisonment was inevitable, Mr Goodfellow submitted the sentence was to be reduced by the following matters: your plea of guilty, your past good character, history of gainful employment, your connections with and contributions to local community, not only through the operation of businesses but by the provision of assistance to community groups, and your prospects for rehabilitation.

30 Your plea of guilty, although entered very late in the piece, as I mentioned, entitles you to a reduction in the sentence otherwise appropriate for its utilitarian value. As I have already said, I consider that more weight is to be given to a late guilty plea when it spares a victim, especially a victim of a sexual offence, the ordeal of reliving events and giving evidence, vindicates her truthfulness and spares her the indignity of being challenged on her truthfulness and reliability. Therefore you get benefit not only for the utilitarian benefit in saving the time and cost of trial but also for those matters in terms of the sparing of the victim and the vindication of her.

31 Although the guilty plea does not of itself or in combination with other evidence indicate remorse and so add to the other evidence relevant to an assessment of your prospects for rehabilitation, there are positive factors counting in your favour in respect of your prospects for rehabilitation.

32 I have already referred to and accept your well established links to the community in Daylesford. I am told you intend to return there and to support your mother upon your return. It is your intention on your release to re-establish yourself in a business in the area, if you can in another holiday accommodation or bed-and-breakfast style business. You have friends as well as family in the Daylesford community, strong community ties. They are all positive features counting towards your prospects for rehabilitation.

33 I am told that you feel a sense of obligation to support your mother that you now are dealing with the remorse and the regret that you will be unable to provide her with that support during that term of imprisonment and by reason of what you now acknowledge to be your own wrongful conduct.

34 I am told you acknowledge that the use of ice and other illicit drugs, which in the past you had considered you kept in manageable proportions, may well have contributed to the trouble you now find yourself in. I accept that you have used the time in custody to reflect on that, that you have remained drug-free in the month or so that you have been in custody and that it is your intention to do so for the remainder of your sentence and upon your release. If you do so, that will clearly greatly enhance your prospects for rehabilitation.

35 I accept that you had been depressed following the death of your father, but of course there is no evidence of a clinical diagnosis of depression. But depression following the death of a father, particularly if he has been a strong feature in family life, as he seems to have been, is clearly something that for most feeling people will have an effect on them. I accept that has been the position with you, and that therefore the fact that you will be in gaol whilst your father is not around to provide support to your mother is something that will add to the burden of imprisonment.

36 You do not suffer any mental illness, intellectual disability, personality disorder, or addiction which would impair your ability to lead an offence-free life on release, adversely impact on your prospects for rehabilitation or require significant weight to be given to specific deterrence or protection of the community.

37 The content of your recorded interview I found particularly disturbing. You denied the offending. You described the victim in the most disparaging of terms. You sought to deflect attention from your conduct by suggesting she had engaged in a sexually provocative manner, forcing her unwanted attentions on you, and suggesting that she should be the one subjected to investigation and charge. Your attitude to the complainant, the way you described your ability to pick up women, the way you described the victim and women generally by reference to their looks suggests a deeply disrespectful attitude to women. It was certainly depersonalising and dehumanising of the victim and of the other women you described, employees and those you "picked up", to use your term.

38 Whether the manner in which you expressed yourself in interview is reflective of your attitude to women generally I do not know. But it is something that you should think about and, more importantly, something that those responsible for your management in custody, those responsible for deciding whether you should engage in programs and what types of programs you should participate in in preparation for your release and in determining your eligibility for parole and the conditions of parole is something those responsible for you should consider in more detail once you are sentenced. I note that you have been acknowledging what I have been saying and acknowledging by your response that you do not consider the way you expressed yourself in interview is reflective of your broader attitude, but it is something that really does need to be carefully examined.

39 I am not, I want to make it very clear, sentencing you for any concern about whether indeed you hold those attitudes about women more broadly but saying this in order to ensure that, whilst in custody, those attitudes are properly able to be explored and examined so a proper assessment could be made about how and when you should be released. Subject to the results of those enquiries whilst you are in custody in relation to your attitude to women generally, and to your preparedness to engage in sex offender treatment programs and the result of your participation in them, I consider your prospects for rehabilitation should be regarded in general terms, as reasonable.

40 Mr Goodfellow submitted that the sentence to be imposed for this offence should be served concurrently or substantially concurrently with the sentence you are serving for the subsequent matters, in order to not offend the principle of totality. There is no overlap between the subsequent offending and this offence. It is not part of a continuing course of conduct. It is not similar offending. The subsequent offending was committed whilst you were on bail for this offence (and indeed, you were sentenced, amongst other things, for committing an indictable offence whilst on bail for this offence).

41 I am not persuaded the circumstances of the subsequent offences justify full or substantial concurrency. You were on clear notice that you were in trouble and that therefore the decisions to commit the two subsequent bouts of offending are conscious decisions that in my view justify the sentencing for those offences being treated separately from the sentencing for this offence. I am not satisfied that imposing a sentence for this offence to be served cumulatively upon the existing sentence would be crushing or offend the principle of totality.

42 Mr Goodfellow provided me with a copy of the decision of the Court of Appeal in Singh. As acknowledged, each case must be considered by reference to its own facts and circumstances. As the court said in that case, reference to the median sentence for rape is of little assistance, as it does not distinguish between sentences imposed after trial and those following guilty pleas, nor do sentencing statistics or reference to the median sentence allow a consideration of the time at which a guilty plea is entered or an identification of the particular aggravating features or mitigatory features present in a particular case.

43 If proper deference is to be given to the exercise of judicial discretion so as to truly acknowledge that different judicial minds can fix on different but appropriate sentences for an offence, then I find it difficult to understand how consideration of whether a sentence is wholly outside the range of sentences reasonably available can be determined by reference to a percentage deviation from the median, seemed to be a feature operating on the Court of Appeal in paragraphs 34 and 36 of Singh.

44 I have therefore done my best to fix the appropriate sentence by reference to the circumstances of the offending itself, by the identification of the aggravating features present in this case and the matters counting in your favour to which I have referred. Could you now please stand.

45 Perry Kalofolias, on the charge of rape to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of six years, and I fix the period of four years as the time that you must serve before being eligible for parole. I direct that this sentence be served cumulatively upon the sentence that you are currently serving.

46 I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to be imprisoned for a period of seven years, and I would have fixed a period of five years as the time that you would have had to have served before being eligible for parole.

47 Are there any further orders that are required to be made?

49 MR GOODFELLOW: No, Your Honour. Just one very small comment, Your Honour made reference to the period of custody that he's currently serving. He's in fact done approximately five months. There was a period of remand also. I think it's perhaps inconsequential, but I just make that note.

50 HER HONOUR: Thank you. I must say I had not appreciated that. I thought he had gone into custody only in September. What that does mean is it fortifies that he has had time to reflect about - - -

53 MR GOODFELLOW: There was 106 days declared as PSD when the sentence was imposed.

54 HER HONOUR: All right, thank you. I did miss that. It does not affect the reasoning process that I have gone through. In practical terms what it does mean is that there less time that there is left to be served cumulatively with this sentence. But I certainly did not adjust the sentence that I fixed on for this by reference to an assumption that he had seven months to go.

56 HER HONOUR: It was simply by reference to, as best I could, a consideration that it should be served cumulatively. So I want to make it very clear I have not adjusted this sentence by reference to the time that he has served or the time I thought he had left to serve.

58 HER HONOUR: But thank you for that clarification. Anything else?

60 HER HONOUR: Mr Kalofolias, I am required to remain in court whilst you are in the dock, but I understand it has been a difficult time for you, that you have been in prisons away from home and that it is difficult for your mother to get transport. I will remain on the Bench for a short time so you can speak to your mother and to your friend before you are removed from the dock.

62 HER HONOUR: Thank you. Yes, can you just explain that and take them there. Yes.