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[2022] VCC 799
General information, not legal advice.
County Court of Victoria
2022-06-01
Mr P
Original judgment source is linked above.
Sentence: 17 years, 6 months imprisonment. 12 years, 6 months minimum
1 On 13 December 2021, following a trial which had commenced on 29 November 2021, a jury returned guilty verdicts against you, David Langley[1], on 12 charges on Indictment Number J11326416.5.
2 You were convicted of five charges of indecent act with a child under 16 (Charges 1 to 4 and Charge 6), two charges of incest (Charges 5 and 7), two charges of sexual assault (Charges 11 and 12), and three charges of rape (Charges 13, 14 and 15). For completeness I note that the jury found you not guilty by direction on Charges 8, 9 and 10.
3 The maximum penalties specified by Parliament for the offences of which you have been found guilty are as follows:
4 Your offending occurred in relation to three victims, your former wife and your two step-daughters. The five offences of indecent assault with a child under the age of 16 involved your younger step-daughter**.** The first two offences involved you touching your younger step-daughter's breasts, firstly while taking her to the doctor and then when returning home after visiting the doctor. These offences occurred between 1 June 2014 and 31 August 2016 when your younger step-daughter was aged between 12 and 14.
5 Charge 3 involved you again touching your younger step-daughter's breasts after giving her money before she went to the movies. This offence occurred between 20 June 2015 and 31 July 2015 when your victim was aged 13 years.
6 Charge 4 involved you again touching your younger step-daughter's breasts after stopping your car in a wooded area close to a regional town, where you had driven her. This offending occurred between 1 August 2015 and 31 March 2016 when your victim was either 13 or 14 years of age.
7 Charge 5 of incest occurred when you digitally penetrated your younger step‑daughter in the course of the same offending involved in Charge 4. Your victim was aged either 13 or 14 when this offending occurred.
8 Charge 6 involved you touching your younger step-daughter's breasts in a shed at your family home on a date in 2016 when your victim was 14 years.
9 Charge 7 of incest involved digital penetration of your younger step-daughter in the same circumstances as those involved in Charge 6.
10 Charges 11 and 12 relate to sexual assaults on your elder step-daughter, occurring between 1 January 2016 and 25 September 2016 when your elder step-daughter was aged 17 years. Charge 11 involved you touching your victim's breasts in an area at the family home described as her mother's closet, or probably a walk-in wardrobe. Charge 12 also involved a sexual assault upon your elder step‑daughter and involved you touching her thigh whilst driving during the same period in 2016.
11 Charges 13, 14 and 15 relate to rapes of your former wife. Charge 13 occurred at the family home during November 2016 when you intentionally sexually penetrated your then wife with a cucumber without her consent. Charge 14 involves you orally raping your then wife during August 2017, again at what had been the family home. Charge 15 involves you anally raping your then wife in April 2018 at an area of parkland near the family home.
12 The brief summary I have set out does not in any way adequately describe the depravity of your offending and the impact it has undoubtedly caused your three victims.
13 I note that Mr Baume, who appeared on your behalf in your plea hearings, quite properly accepted that the offences of which you have been found guilty are inherently very serious.
14 In addition to any other sentencing considerations, Parliament has enacted particular provisions which are relevant to the sentence I must impose upon you. The offence of rape, when committed by an adult after 20 March 2017, is a Category 1 offence. The consequences of the legislation mandate an order for imprisonment with limited exceptions in relation to the sentence I must impose upon you in relation to Charges 14 and 15. In view of the manner in which your plea hearing proceeded, it is unnecessary to further discuss these legislative provisions as I have concluded that the objective gravity of your offending in relation to Charges 14 and 15 would leave no alternative but the imposition of a sentence of imprisonment.
15 Charge 15 is subject to the standard sentencing scheme. The standard sentence for rape is 10 years' imprisonment. The Court of Appeal has provided sentencing judges guidance in relation to a standard sentence regime in a case of Brown v The Queen.[2]
16 The crimes for which you have been found guilty are all serious sexual offences as specified in Schedule 1 of the Sentencing Act 1991. Upon conviction and a sentence of imprisonment on two charges, you are to be sentenced as a Serious Sexual Offender on the remaining charges. The effect of this legislation requires the court to regard protection of the community as the principal purpose for which a sentence is to be imposed. In addition, the sentences imposed must, unless otherwise directed, be served cumulatively; that is one after the other.
17 In the present case the prosecution does not ask the court to impose a disproportionate sentence upon you. Additionally, the court must enter into the record that you have been sentenced as a Serious Sexual Offender.
18 You will be required to be registered under the provisions of the Sex Offenders Registration Act 2004. Your reporting obligations will endure for the remainder of your life.
19 Your plea hearing following the jury's verdict commenced on 23 March 2022.
Ms Guesdon, on behalf of the prosecution, tendered into evidence a victim impact statement made by your former wife on 17 January 2022. She did not wish this statement to be read out in court. Suffice it to say that on reading the victim impact statement I conclude that your offending has had a profound effect on your former wife, who describes severe ongoing emotional difficulties in addition to some physical consequences from your rapes upon her.
20 Ms Guesdon additionally tendered into evidence the prosecution's submissions in writing, which urged the court to give weight to the guidelines of general deterrence, denunciation and the imposition of just punishment upon you.[3]
21 Mr Baume, on your behalf, tendered into evidence the following:
22 Dr Davis gave evidence during your plea hearing and was cross-examined. I accept the opinion evidence of Dr Davis that you are suffering from a major depressive disorder of moderate severity with anxiety and distress. I also accept the conclusion that you suffer from a mild intellectual disability. I note Dr Davis' opinion that you have no real insight, but this opinion must be balanced with the evidence given in cross-examination that you appreciated that your offending was wrong, and further that you took opportunities to offend against your two step‑daughters when you believed you were alone and would not be detected.
23 During your further plea hearing on 26 April 2022 Mr Baume referred to the evidence of Dr Davis and the earlier opinion from Mr Dowling, neuropsychologist. Dr Dowling in 2019 reached the conclusion that your general cognitive function was in the mildly intellectually disabled range. Dr Dowling administered a neuropsychological assessment revealing a full scale IQ equalling 55, but stated:
'... his true general intellectual ability is probably closer to IQ=65, after adjusting for his slowness on processing speed tasks that is probably linked to his very limited education.'[5]
24 Mr Baume submitted that your diagnosed mental health conditions, your intellectual disability should be given weight in relation to both principles 5 and 6 as set out in the case of Verdins.[6] Additionally the court should be satisfied that at the time of your offending you had impaired mental functioning, which was causally linked to the commission of the particular offences, so as to substantially and materially reduce your culpability. Such a finding would be relevant to the imposition of a minimum non-parole period in accordance with s10A of the Sentencing Act 1991.
25 I accept that your intellectual disability and diagnosed mental health conditions lead to a conclusion that any sentence of imprisonment imposed upon you may weigh more heavily on you than a person unaffected by such conditions.[7]
26 I further accept, in light of the evidence given by Dr Davis, that there is a serious risk of imprisonment having a significant worsening effect on your mental health.[8] I cannot accept the submission that your impaired mental functioning had substantially and materially reduced your culpability, given the protracted nature of your period of offending and the measures you took to avoid being detected. I do accept that principles 5 and 6 as discussed in Verdins case are relevant in imposing a just sentence upon you.
27 You are currently 38 years of age, having been born in a rural village in South Asia in August 1983. You were raised in difficult circumstances involving poverty and your parents separating when you were six years of age. You then lived with your grandparents, who did not support any form of education. You left school at the age of 10 to work in order to support your family. At age 13 you moved to a nearby country with your family and worked in various labouring jobs. You returned to your village of birth in your early 20s and then worked in the Middle East in construction labouring jobs.
28 You met your former wife in your home village in late 2010 and were married in an arranged marriage in early December 2010. At that time your former wife was the mother of two daughters who became your victims. You were then working as an ambulance driver in a regional area and you retained that work until you left your village in May 2012 to immigrate to Australia.
29 Your former wife was at that time entitled to reside in Australia, and in May 2012 you immigrated on a partner's visa. In addition to your two step-daughters, you and your wife had a son who was born in Australia. You described the marriage as unhappy. Indeed on your instructions, Mr Baume made negative comments about your former wife and particularly her drinking, during the course of your plea. Your insistence on raising these matters through counsel gives some indication as to your limited appreciation of the serious nature of your offending.
30 In any event, you left the family home in late 2016, but returned on occasions thereafter. You subsequently re-partnered in around March 2018 and that relationship has produced another daughter, who was born in November 2019. Your new partner has a son now aged 12 from a previous relationship. You were living with your new partner and the two children up until the time you were remanded in custody at the conclusion of your trial.
31 I accept the submissions by Mr Baume that you stand to be sentenced as a person with no prior convictions. I additionally accept Mr Baume's submissions that you have paid child support up until 2018 and you had continued to pay the mortgage on the former matrimonial home up until the early part of 2017. After that date, you continued to pay some further amounts by way of maintenance to your former wife and her two daughters for some indeterminate period.
32 I also accept on the basis of the evidence given by Dr Davis that you pose a low to moderate risk for sexual recidivism and I note that you have used your time whilst on bail well, and remained free of any further offending whilst in the community for a period in excess of three years. As to the prospects of any sexual reoffending, I note the comments made by Dr Davis which notes the constraints on any psychological or psychiatric opinion regarding further offending where you have and continue to maintain your innocence of any of the offending of which a jury has found you guilty. Clearly, no question of remorse can moderate the sentence to be imposed.
33 I have taken into account the sentencing considerations for sexual offending against children in cases of Clarkson v The Queen; EJA v The Queen[9] and DPP v Dalgleish.[10] I have also taken into account the circumstances of your offending concerning your former wife, where the first two rapes were committed in circumstances where you had threatened further offending by turning to her daughters if she did not agree to participate.[11] These two offences are properly described as occurring in circumstances of domestic violence and the Court of Appeal has noted that a sentencing disposition must adequately reference both general and specific deterrence in those circumstances.
34 In moderation of the sentence that I must impose upon you, I accept that delays whether by reason of Covid-19 or other factors, have caused the prosecution of these matters to be delayed and the uncertainty of the outcome of the trial no doubt weighed heavily upon you for this lengthy period. To your credit you have demonstrated rehabilitation and have not re-offended in that period.
35 Additionally, the reference from Mr Wilson, which was tendered by Mr Baume, demonstrates that in the community you were otherwise well regarded and a hard worker.
36 I also intend to take into account your difficulties with the English language, which, coupled with your intellectual disability, will no doubt make any period in custody more difficult for you.
37 I also accept there is a probable risk that upon completion of your sentence you will be deported, and I note that you currently have not only a supportive new partner, but two children who were born in Australia. This has relevance in two ways. First, the prospect of you being deported after finishing your sentence makes that sentence more onerous for you. Secondly, the fact of deportation occurring in circumstances where you have established a new relationship and family ties in Australia, will constitute an additional punishment.
39 I have also taken into account the current sentencing practices and a range of decisions of judges in this Court, both relating to charges of rape, indecent act with a child, sexual assault and incest. Ultimately, the task which falls to me is to sentence you in a manner that is just and fair to you and to the community, against whom you have offended. That community necessarily includes your three direct victims, but sadly your offending, and similar offending of its type, has widespread implications, which is why Parliament has required condign punishment in circumstances where this offending has been proved against you.
40 I will pause there. I am going to impose sentence on the individual matters. At the end of the sentence I will indicate the total effective head sentence and the minimum non-parole period.
41 On Charge 1 you are convicted and sentenced to 2 years' imprisonment.
42 On Charge 2 you are convicted and sentenced to 2 years' imprisonment.
43 On Charge 3 you are convicted and sentenced to 2 years' imprisonment.
44 On Charge 4 you are convicted and sentenced to 2 years' imprisonment.
45 On Charge 5 you are convicted and sentenced to 5 years' imprisonment.
46 On Charge 6 you are convicted and sentenced to 2 years' imprisonment.
47 On Charge 7 you are convicted and sentenced to 5 years' imprisonment.
48 On Charge 11 you are convicted and sentenced to 1 year 6 months' imprisonment.
49 On Charge 12 you are convicted and sentenced to 1 year 6 months' imprisonment.
50 On Charge 13 you are convicted and sentenced to 6 years' imprisonment.
51 On Charge 14 you are convicted and sentenced to 6 years' imprisonment.
52 On Charge 15 you are convicted and sentenced to 8 years' imprisonment. This is the base sentence. You are sentenced under the standard sentencing scheme in relation to this charge. Having considered your intellectual disability, which I find was present at the time of this offending, I regard your moral culpability as being lessened to an extent so as to justify a departure from the standard sentence prescribed.
53 Having been convicted on Charges 1 and 2 and sentenced to a term of imprisonment on each of those charges, you fall to be sentenced as a Serious Sexual Offender on Charges 3, 4, 5, 6, 7, 11, 12, 13, 14 and 15.
54 You have been sentenced as a Serious Sex Offender in relation to the charges I have just referred to and the base sentence I have imposed upon you on Charge 15 is subject to the standard sentence scheme. The imposition of a just and fair sentence upon you dictates that the sentences I have imposed must be to some extent cumulative, so as to acknowledge your offending against your three separate victims over a prolonged period, but some degree of cumulation is warranted.
55 Upon the base sentence I will cumulate six months of the sentence imposed on Charge 1;
56 The following cumulations will cumulate upon the base sentence and upon each other.
63 Six months of the sentence imposed on Charge 11.
64 Six months of the sentence imposed on Charge 12.
67 The total effective sentence to be imposed upon you as a head sentence is
17 years and 6 months imprisonment. In light of the matters to which I have referred above, I propose to set a minimum period before you are to be eligible for parole at lesser than I would otherwise set, that period is 12 years and 6 months.
68 I declare that you have served 170 days, not including today, in pre-sentence detention, and I direct that be noted in the records of the court.
70 MS GUESDON: Yes, Your Honour. Just the Sex Offenders Registration Act 2004.
73 HIS HONOUR: Yes. I will make an order. What section is the registration?
74 MS GUESDON: I don't know off the top of my head, I would have to have a look.
76 MS GUESDON: But I think it is mandatory but Your Honour just rules in that - - -
77 HIS HONOUR: Yes. I will direct that you be recorded on the Register in accordance with the Sex Offenders Registration Act 2004 and I note that the reporting conditions require you to report for the remainder of your life.
78 All right, Mr Baume, is there anything further that you would require?
80 HIS HONOUR: Thank you. Well I thank you all. Mr Langley, it is always difficult to pass a sentence on a person who has been convicted and it is even more difficult when that person maintains their innocence, but you have been convicted by a jury and my job is to pass sentence in accordance with that jury verdict. I am now going to adjourn the court and terminate the link. Finally, I would thank you, Mr Interpreter, for what is clearly a difficult task in interpreting the remarks that I have made and the sentence that I have passed.
82 HIS HONOUR: Thank you. Yes, we will adjourn the Court.
[6] R v Verdins [2007] VSCA 102; (2007) 16 VR 269
[11] DPP v Mokhatri [2020] VSCA 161 & Jurj & Miftode v The Queen [2016] VSCA 57
DPP
Langley
(2007) 16 VR 269