DPP v Padroth [2021] VCC 2001

4 The circumstances surrounding the first theft can be briefly summarised in the following way. At the time of that offending you were 29 years old and your victim, Rachel McArdle, had moved in February 2013 to live in Shepparton. The two of you met on a website called 'Plenty of Fish'.

5 After some communication between the two of you it was arranged that you would travel to Shepparton by train. She picked you up from the Shepparton train station in her car and eventually drove home. She told you that her car needed repairs and you insisted on looking under the bonnet. Whilst you were looking for the lever to release the bonnet you found and opened a small compartment which contained $350 in notes. You then opened the bonnet and looked at the engine whilst it was running. Later on you returned to the car and stole $200 of the $350 that she had in that area saved to pay her rent.

6 The second trial involved the complainant who you also met on the dating website Plenty of Fish. The complainant, Alyssa Grech, was 31 years old. In March 2013 she came across your profile. You communicated with each other and eventually exchanged phone numbers.

7 On 29 March 2013 there were further conversations throughout the day and the two of you exchanged personal information. The next day there was further communication. You had kept asking to meet her in person and she finally agreed. It was arranged that you would go to her home to stay overnight and again you got the train on this occasion to the Packenham Station late in the evening of 30 March.

8 As she drove you to her home you began rubbing her thigh. She made it clear that the two of you would not be having sex and you removed your hand. You said that you wanted to get to know her and wanted to have a relationship with her. She had arranged for her son to stay with his father so the two of you were alone at her home. That evening the two of you watched television before going to bed. The two of you were getting along well. You slept in the spare room.

9 The next morning, Sunday 31 March, you went into her room and got into bed with her. You had consensual sexual intercourse with her. After that she got up early. You were still asleep. At about 9 am she woke you and told you that she was going to her farm to feed her dogs. She returned a short time later to find you in the shed. You told her that you were looking at a pig.

10 She noticed immediately that your attitude seemed different. Instead of staying until lunchtime as originally planned you wanted to know when the next train would arrive. Apparently you had just missed a train and had to wait for some time.

11 You sat on the couch in the lounge room. She went to sit on your knee, you pushed her off. You were not speaking to her. Her kitten jumped onto your knee and you grabbed it and threw it about a metre across the room. She slapped your leg and told you not to hurt the animal again. You swung a clenched fist and struck her to the upper chest. Some words were exchanged and she got up and went to her bedroom. She lay on her bed. She was fully clothed.

12 A few minutes later you came into her bedroom and lay next to her, spooning her from behind. You were now only wearing boxer shorts. You tried to pull her trackpants and undies off and she said, 'No'. She pulled up her pants and tried to get off the bed kicking you in the leg. You then grabbed her pants, pulling both the trackpants and undies down past her bottom. You grabbed her by the throat briefly and she tried to remove your hand. You pushed forward with your hand on her shoulder before penetrating her vagina with your penis. You grabbed a handful of her hair pulling her head back and held her in that position for three or four minutes. You removed your penis and rolled over and masturbated to ejaculation, after which you went and had a shower. She lay on her bed in shock. This is the charge of rape, Charge 1, which you were found guilty of.

13 After the shower you asked her where the train station was and she walked you to the front of her house and gave you directions to the station. As you were leaving you went to kiss her and she turned her face away from you and you bit her on the neck. Once you had left she went to the bedroom. She went to get some jewellery to put on after her shower and noticed that a gold bracelet was missing. She had taken the bracelets off the previous day just before she left to collect you from the station. No one else had been at her home in the meantime. That is the charge of theft, Charge 2.

14 She eventually reported the theft to the police and later reported to Constable Powell that you had had non-consensual sex with her.

15 You are not in any way to be sentenced for any violence to her prior to going into her bedroom and raping her, nor for any violence to her upon leaving to go to the train station. Though of course, it gives some understanding to your behaviour before and after the rape evidencing the change that she observed in you prior to going to her bedroom.

16 There is an issue as to the violence during the course of the rape and the extent of it. In that regard I turn to her statement which is part of the depositions at p70 and the passage at p73 dealing with the rape. She says at paragraph 16 and 17 the following:

'I was lying on my bed upset and few minutes later Danny came into my room and lay next to me, he was spooning me from behind. I was wearing tracksuit pants and undies with a t-shirt and bra. Danny was only wearing boxer shorts when he came into the bedroom. Danny tried to pull my trackpants and undies off me to have sex and I told him no and told him to go away. I pulled up my pants and tried to get off the bed and flung my leg back to kick at him. My foot hit his knee or shin area of his leg. This appeared to make him angrier. Danny again grabbed at my pants and pulled both my undies and trackpants down past my bottom area. Danny reached around and grabbed me by the throat with his left hand and he was squeezing his hand up underneath my chin. We were still in the spooning position on the bed, I grabbed his hand and tried to get it off my neck and at that time he let go. Danny then pushed me forward and put his hand on my shoulder holding his weight down on me. Danny then put his penis inside my vagina. Danny let go of my shoulder but grabbed a handful of my hair and pulled my head back. Danny kept me in that position for three or four minutes, he didn't say anything, he was just groaning. I didn't say anything else at this stage. I just wanted him to finish and leave me alone. I was thinking he could kill me.

Danny pulled his penis out of me and rolled over and masturbated until he ejaculated over his stomach. After he ejaculated Danny got up and went and had a shower. I laid on my bed in shock.'

17 In her evidence-in-chief during the course of that second trial on 1 July 2021 at p23 line 25 in examination-in-chief she is asked the following questions:

Question: 'And what's the next thing that happened after the - sorry, I'll start again. After the train timetable was looked up?'

Answer: 'Yep, he then got really - really blunt and rude and we sat on the couch and I went to sit on his knee and he pushed me off.'

Answer: 'He um just pushed me off, then I sat next to him. Um and we started---'

Question: 'Can I just clarify one matter, sorry, just before we go on? You said that he was being blunt and rude. What do you mean by that? What was he doing or saying?'

Answer: 'He was really annoyed that he couldn't get that train, that he had to stay longer.'

Question: 'So you said you went to sit on his knee and he pushed you off?'

Question: 'And I can't remember if you said where he was sitting?'

Question: 'And after he pushed you off where did you end up?'

Question: 'And what's the next thing that happened?'

Answer: 'Then I had an eight-week-old kitten and the kitten walked behind the couch and walked over the back of the couch and then like sat on his knee and he picked it up by the throat and threw it across the room.'

Question: 'And about how far was the kitten thrown?'

Question: 'And I think you said it was eight weeks old, is that what you said?'

Answer: 'Eight weeks old. I'd only just got it a few days beforehand off its mum, yep.'

Question: 'Did the kitten do anything between walking on the back of the couch and jumping on his knee and being thrown?'

Answer: 'Yeah, I slapped him on the leg and told him if he ever hurts my animals again, I'll never have anything to do with him.'

Question: 'And did Danny have any response to that?'

Answer: 'Yeah. He swung his arm and punched me in the chest.'

Answer: 'Yeah. "I can do whatever I want" or something like that.'

Question: 'After he punched you did you say anything to him?'

Answer: 'I went and lay on my bed, just tried to catch my breath.'

Question: 'So you were lying on your bed and what happened then?'

Answer: 'Then he came - he came in, and he only had his boxer shorts on.'

Question: 'And what were you wearing at that time?'

Answer: 'Ah tracksuit pants, knickers and a T-shirt.'

Question: 'And is that what you had worn down to the farm? Was it the same clothes?'

Question: 'Okay. So he came in wearing only his boxer shorts and what happened then?'

Question: 'What position were you in and then what position was he in?'

Answer: 'Lying on my side and he was behind me lying on my - laying on his side facing the same way.'

'Question: 'Can you recall which way you were facing in terms of your bedroom?'

Question: 'To the back of the house, not the front of the house?'

Question: 'So he was facing you the same way. What happened then?'

Answer: 'Well he started trying to pull my pants down.'

Question: 'And how did he do that? Sorry, you might have missed what I said. I was just asking you how was he doing that?'

Question: 'He was grabbing at them and doing what?'

Answer: 'From behind just trying to rip them down past my bottom.'

Question: 'And did you say or do anything at that point?'

Answer: 'He reached through and grabbed me around the throat.'

Question: 'And can you recall which hand he did that with or from which direction?'

Question: 'You said he grabbed you by the throat. Can you just explain how he was doing that?'

Answer: 'He just put his hand around my throat and he was squeezing it.'

Answer: 'Yeah, I kicked him in the shin - I kicked back and told him to stop it.'

Answer: 'No, he just took his hand from around my throat and put it on my shoulder and started pushing down.'

Question: 'When you say "pushing down" can you just explain what you meant by that?'

Answer: 'Put his hand on my shoulders and was pushing me down.'

Question: 'Perhaps before we move on I'll just go back to clarify. When you said he grabbed you by the throat I asked you if he said anything. Did you do anything?'

Answer: 'No, I was frightened. I just sat there, just lay there. I didn't know what to do.

Question: 'So after he put his hand on your shoulder and was pushing you down what happened then?'

Answer: 'He took one of his hands off my shoulder and pulled my pants down from behind.'

Question: 'Did you say or do anything at this point?'

Question: 'I just need you to clarify. Put his penis inside where?'

Question: 'Did he say or do anything as this was happening?'

Question: 'And I can't recall if I already asked you this but did you say or do anything at this point when he was thrusting in you?'

Question: 'And how were you feeling at this as this was happening?'

Answer: 'I just felt like I had to let him do what he had to do so I would see my kid again and that he was going to kill me.'

Question: 'Okay. And just as best as you can, about how long was he thrusting for?'

Answer: 'Um he rolled over on his back and pulled himself until he ejaculated on his stomach.'

Question: 'Okay. After he ejaculated on his stomach what happened then?'

18 In cross-examination at p48 of the trial transcript the following questions were asked from line 19 onwards:

Question: 'Okay and he - well at what point was it?'

Question: 'And you say he grabs you with his left hand?'

Question: 'What was your - your response at that stage?'

Question: 'When he was - when he had a hold of your throat how long did he have a hold of it for?'

Answer: 'I don't know. Long enough to hurt and squeeze it.'

Question: 'All right and are we talking a matter of seconds or a matter of minutes?'

Question: 'And he maintained that pressure for across those minutes, is that right?'

Question: 'What about when he had his hands on your shoulder?'

Answer: 'He had both hands on my shoulders and was pushing me down.'

Question: 'Were you still on your side at that point?'

Question: 'And you said he had both hands on your shoulders?'

19 Later at p52 in cross-examination Mr Patton, counsel for you, asked these questions, line 9.

Question: 'Ms Grech, prior to the luncheon break I was asking you about the evidence you had given about Mr Padroth's hands on your shoulders?'

Question: 'Was he squeezing onto both of your shoulders?'

Question: 'And for what period of time was that happening?'

20 The purpose of me going to such detail concerning the events in the bedroom is to isolate whether or not there was violence towards the complainant during that rape. It is said by Mr Patton that the description given is not consistent with the absence of any bruising, particularly to the throat area.

21 Whether this is so or not and whether there was later bruising that could have been observed or not is not to the point. Her description of being held around the throat, held around the shoulders in order for you to sexually penetrate her against her will was part and parcel of the events the jury had before them in determining whether her account was true beyond reasonable doubt.

22 I am satisfied, consistent with the jury's verdict, that you did apply pressure to her throat and pressure holding her down by her shoulders to the extent necessary for you to physically control her in order for you to rape her.

23 The circumstances leading to you coming into the bedroom and your conduct towards her speaks to a lack of control by you and taking advantage of a situation by you to dominate her. You had no reason to be aggressive towards her. You seemed to have some frustration about missing a train.

24 This lack of control by you and your impulsivity is a matter that I will return to later on in my sentencing reasons.

25 In this case there is no victim impact statement though it is plain from her description that I have read, not only from the prosecution opening but also the statement and her evidence at trial, that she was terrified. She feared for her life. In the end she simply lay there fearful of what would happen to her beyond the rape.

26 I am satisfied that what you did to her, coming out of the blue so far as she was concerned, in her own bedroom would have had a significant effect on her then and subsequently.

27 I turn to assess the gravity of your offending. Here you followed her into her own bedroom. You forced yourself upon her. She made it clear to you that she was not consenting by saying, 'No', as well as by trying to resist you pulling her pants down. You had full vaginal penetration of her. This occurred in her own home, in her own bed. This is therefore a serious example of rape and serious offending.

28 The allegations of rape by both the complainants were made in late March 2013. On 14 April 2013 a record of interview was conducted in relation to the offending involving Ms Grech. On 14 May 2014 you were approached by police at the Latrobe Valley Magistrates' Court to arrange an appointment three days later, 17 May, for you to be interviewed in relation to the offending that concerned Ms McArdle which became the first trial.

29 That 17 May you left a message to the informant advising her that you were unable to attend. From then on you failed to attend several more appointments before police were unable to contact you further.

30 On 14 July 2014 police submitted a "whereabouts" for you. On 11 August 2016 you were charged and on 5 December 2016 the informant attended Cairns in Queensland in order to extradite you but that extradition was unsuccessful.

31 On 3 and 4 August 2017 there was a contested committal in relation to the allegations of both complainants and trial bail was fixed. On 22 May 2018 your surety contacted the informant advising that you had not been in contact with them and not living at the address as required and that they did not know your whereabouts.

32 On 1 June 2018 there was a bail variation. You failed to attend and a warrant was issued for your arrest.

33 In between your first interview and the arrangements for a second interview you had effectively disappeared, travelling to New South Wales and later on Queensland. From there eventually you travelled to Western Australia where, whilst on bail in relation to these matters in Victoria, you committed offences against a seven year old boy on 2 July 2018.

34 The transcript of proceedings before District Court Judge O'Neill in the Western Australia District Court on 1 March 2019 became Exhibit 4. At p5 of the transcript the learned prosecutor, Ms Clark, said the following.

'At about 7.30 pm on Monday 2 July 2018 the offender was at Banksia Grove. Also present at the address was the victim's multiple family members.

The victim and his siblings were vacuuming the floors around the house and doing general household cleaning. The victim was playing with the vacuum cleaner when the offender instructed the victim to take his clothes off and place his penis inside the vacuum nozzle whilst it was switched on.

The victim removed his pyjamas and placed his penis inside the vacuum cleaner. The offender took an image of the victim on his mobile phone whilst his penis was inside the vacuum cleaner and disseminated it to an acquaintance.

At about 2.30 pm on Thursday, 5 July 2018 police attended the address to arrest the offender. However, he avoided apprehension. Police conducted extensive investigative action and at about 12.40 pm on Monday, 9 July 2018 the offender was located in Toodyay.

The offender was arrested and conveyed to Joondalup Detective's Office where he participated in a record of interview. The present charges were deferred.'

35 The charges to which you pleaded guilty to were firstly, that you indecently dealt with a child under the age of 13 by procuring the child to undress and insert his penis into the nozzle of a vacuum cleaner. The second charge is that on the same day at the same place you indecently recorded a child under the age of 13 by taking an indecent photograph of him.

36 Judge O'Neill on those two charges commented, among other things, the following at p15 of the transcript.

'First, you were on bail for other serious offending when you committed these - this, not only were you on bail but you were, in fact, on the run under a false name seemingly to avoid prosecution for those offences.

You breached a position of trust that you held as the de facto partner of the victim's mother. That breach of trust included concealing from the victim's mother the fact that you were seeking to escape prosecution in another state for serious sexual offending.

The child victim here was particularly young. And with respect to the offences themselves there was a considerable degree of perversion attending on these acts and the risk of injury to the child.'

37 A little later on that same page His Honour continued.

'I will say however that such is your level of deceit that it is difficult to be confident about anything that you say.'

38 His Honour sentenced you to 18 months on each charge with cumulation. The total effective sentence was two years and a minimum non‑parole period of 12 months was imposed, though in the event you served the whole of the two years.

39 Thus what is revealed is that you had, in breach of your bail conditions in Victoria, fled the jurisdiction. You eventually had come to Western Australia where, under an assumed name, you had come into that child's mother's household where you committed further offences against a vulnerable child.

40 The significance of those matters is the fact that you are prepared to abscond and commit further offences whilst on bail for serious sexual offences in Victoria.

41 These are matters of moment in relation to the exercise of my discretion to register you as a sex offender under s11(1) of the Sex Offenders Registration Act 2004.

42 The approach that a court should take in determining such an application was considered by Redlich and Coghlan JJA and Dixon AJA in Bowden v The Queen [2013] VSCA 382.

43 At paragraph 30 and following Their Honours wrote:

'The inquiry into whether to make a registration order is a two-stage process. Because s11(3) operates to confine the circumstances in which the power to make a registration order may be made, its requirements must first be satisfied. The sentencing court must be satisfied that the conditions for making such an order are present - namely, that the person has pleaded guilty to qualifying offences and that the judge is satisfied to the criminal standard that they pose the relevant risk. Second, exercising judicially the discretion reposed in it by s11(1) the court must determine whether in all the relevant circumstances to make a registration order.

The court must be satisfied that the person poses the requisite risk. Risk refers to the exposure to a chance of harm in question occurring. The type of risk is a risk to the sexual safety of one or more persons or of the community. It is not necessary that the court is able to identify a risk to particular people or a particular class of people. No issue is raised on this appeal that requires consideration of the term 'sexual safety'. For present purposes it suffices to say that a risk that a person may reoffend by committing an offence of the type described in the schedule to the Act would be a risk to the sexual safety of one or more persons or the community.'

44 Their Honours in paragraph 32 and following give detailed consideration to that two stage process.

45 During the course of Mr Patton's excellent plea on behalf of you, a psychological report of Dr Dion Gee dated 22 November 2021 was tendered as Exhibit DP2. This is a comprehensive 38 page report and deals with a number of matters including various tests as to your risk of future sexual violence. I intend to extract somewhat lengthy passages from that report.

46 At paragraph 15 there is a summary of risk judgment in which Dr Gee writes:

'The static variables present in Mr Padroth's case as assessed by the Static‑99R indicate that his level of risk of sexual violence is in risk level IVB (well above average risk). A more comprehensive and tailored analysis of Mr Padroth's sexual violence risk using the RSVP shows that he represents a moderate - high risk of reoffending sexually, moderate if it were the case that he was successful in the appeal against his recent conviction. Whereas his current circumstances as assessed by the SAPROF affords at most a moderate level of protection against a relapse into sexual violence. Taken together and based on the information presented in this report Mr Padroth currently demonstrates a moderate - high or moderate if an appeal were successful, risk of reoffending sexually in the future. Meaning that he is more likely than or as likely as the typical convicted sexual offender to reoffend. (See below pp30-36 for a comprehensive account of Mr Padroth's risk profile.)'

47 The Static-99R testing is considered in paragraphs 78 and following and at paragraph 80 Dr Gee writes:

'A strict interpretation of the Static-99R saw Mr Padroth receive a score of 7 which placed him in risk level IVB (well above average risk) for being charged or convicted of another sexual offence for the ensuing two year period in the community. Mr Padroth's score was higher than 97.2% of routine samples of sexual offenders.'

48 In relation to the RSVP testing Dr Gee sets that out at paragraph 84 and following. RSVP stands for Risk of Sexual Violence Protocol. In that regard at paragraph 85 Dr Gee wrote:

'As can be seen from the RSVP Coding Table above when considering Mr Padroth's current criminal justice circumstances historically he is seen to present with a high risk of sexual violence in the community with such a profile underpinned by risk markers within all of the risk domains. From the available information Mr Padroth's risk profile within the recent past, that is within the past 12 months, excepting the now historical nature of the charges for which he was recently convicted, has reduced through a lack of expression in the sexual violence domain. When future reference to the above mentioned risk factors is considered Mr Padroth's risk is seen to present within the moderate - high risk range, a risk profile underpinned by a level of dysfunction within most of the risk domains. Overall the findings of the risk of sexual violence protocol indicate that Mr Padroth currently presents with a 'moderate - high' risk of sexual violence in the community if no further intervention is provided.'

49 The other test that was applied was the structured assessment of protective factors for violent risk which has the acronym SAPROF. At paragraph 87 Dr Gee writes in regard to that test:

'The below SAPROF profile suggests that Mr Padroth's current circumstances afford at most a low moderate degree of protection against a relapse into sexual violence.'

50 In that regard there is a SAPROF coding table which is set out at the top of p36 which sets out a number of protective factors where those factors are ascribed either a zero, a one or a two. External factors 16 and 17 are respectively living circumstances and external control, both of which got the best protective assessment of 2. That, of course, reflects only the fact that you are in custody thus absent those factors the low moderate protective judgment assessment could even be lower.

51 All of those three tests point to you being a risk to members of the community in relation to further sexual offending.

52 In Dr Gee's interview with you, you make some revealing statements in this very regard. At paragraph 59 Dr Gee deals with your self-reporting of your abhorrent behaviour:

'Through discussion Mr Padroth provided general comment in regard to most aspects of his criminal history. When asked what stood out for him when reflecting on his offence history Mr Padroth replied, "Theft stands out. Always done it...I have stolen things that don't belong to me...Done a few violent things. 2003 attempted armed robbery. Back then would give me in to peer pressure. Speeding a few times". Reflecting on his past aberrant behaviour Mr Padroth made comment, "When I'm not occupied I'm a cunt. I do crime when not in a relationship or working driving trucks".'

53 Furthermore at paragraph 72 Dr Gee sets out the factors that speak to you having a disturbing view of women which I will not repeat in these already lengthy sentencing reasons.

54 And so I turn to the questions that I must answer in relation to your registration as a sex offender under the Act.

55 The first question being whether I am satisfied beyond reasonable doubt that you pose a risk to sexual safety as defined. This is a risk which must be real rather than fanciful. It is a risk that is directed to a risk upon your release into the community. Based on your offending in Western Australia, based upon the fact that you did so whilst on bail in relation to serious sexual offending in Victoria, assisted by the results of the three tests that Dr Gee has administered and by your own words as quoted above, it is plain to me that I am well satisfied beyond reasonable doubt that you do present a risk of sexual safety upon your release into the community.

56 The second question which now arises, me being satisfied as to that matter beyond reasonable doubt, is whether the order should be made in all the relevant circumstances. This involves a consideration of the balance between the identified risk and your right to enjoy freedom and autonomy of action. This balance, as is set out by the Court of Appeal, involves consideration of the magnitude and nature of the risk and the degree of likelihood of the risk eventuating and the gravity of harm to be balanced against the serious consequences for you.

57 Here what you have done in relation to what occurred during the course of the rape of Ms Grech, during the course of the time whilst on the run in relation to two allegations of rape by separate complainants and you offending against a child but seven years of age in a most gross way, together with the tests administered by Dr Gee and your own comments as set out at paragraph 59 of his report, 'When I'm not occupied, I'm a cunt. I do crime when not in a relationship or working driving trucks', amply satisfies me there is a high degree of risk that you pose to a wide variety of people, particularly females and persons who are vulnerable such as seven year olds, of sexual violence against them. The degree of likelihood of that eventuating is, in my view, high. The gravity of harm likewise is high.

58 Balancing those matters against the serious consequences to you to be registered as a sex offender, it is plain to me that the application that the Crown make that you be registered under the Act under s11(1) is clearly established and I will therefore direct that you be registered under the Sex Offenders Registration Act 2004 and be ordered to comply with the reporting obligations of that Act.

59 Turning from that matter to other more general matters. An overview of your circumstances is set out both in Mr Patton's written submissions which became Exhibit DP1 and also in the psychological report of Dr Gee.

60 Under the heading 'Summary/Formulation and Opinion' at p4 paragraphs 8, 9 and the first part of paragraph 10 read:

'As detailed in the report below Mr Padroth's early formative years were seemingly characterised in considerable social, emotional and behavioural disruption disadvantage that acted to derail his psychosocial development. Similarly his transition through early adulthood appeared somewhat deprived of adaptive and prosocial experiences being punctuated by traumatic events that further compromised the development of a stable sense of self and an integrated prosocial identity. Collectively Mr Padroth's life experiences have led to the development of several interlinking psychological mechanisms that appear to underpin his current disposition and in part explain his past aberrant behaviour. Specifically through many maladaptive processes Mr Padroth presents with: (1) emotional behavioural dysregulation (underpinned by deficits in autonomy, unstable mood, impulsivity and external locus of control and the use of external change elements [namely prescription medication, sexual behaviour, self‑harm], compromised emotional responsivity, difficulty regulating general arousal, minimal distress - frustration tolerance, a proclivity towards immediate gratification and pervasive reliance on physical psychological escape avoidance behaviour to self soothe.); (2) intimacy and social skills deficits (that is, reduced social connectedness, anxious avoidance interpersonal style, deficits in self-worth, marked coping skills deficits, poor problem solving skills, thwarted assertiveness, a pervasive mistrust of others, reduced conflict resolution skills, feelings of inadequacy, decreased self-efficiency and conflicted intimacy psychosexual reciprocity); and to a lesser degree, (3) cognitive distortions that appear to make him vulnerable to 'act out' in an aberrant way (expressed through diminished social moral reasoning, compromised empathy, difficulties with perspective taking, thwarted consequential thinking and external attribution style and beliefs that abhorrent behaviour is a way of meeting one's needs), and (4) distortions in his underlying sexual scripts that have acted to support and facilitate his past aberrant behaviour.

In my opinion Mr Padroth does not present with psychopathology suggestive of an enduring psychotic illness, (e.g., psychosis, schizophrenia) although currently demonstrates pathology indicative of an enduring mute disorder and continues to display deficits defectively regulating cognitive, emotional and behavioural states in an adaptive manner. Specifically he fulfils the international classification of disease 2, IDC 2, diagnostic criteria for a recurrent depressive disorder, current episode mild without psychotic symptoms, 6A71 1DC 11 World Health Organisation 2018 and on a background of generalised anxiety and somatic issues. Saliently whilst Mr Padroth has disclosed an intermittent yet seemingly non‑standard pattern of auditory hallucinations particularly during times of heightened emotional distress from the available information it appears that such phenomena are better accounted for within the context of his enduring trauma history and complex personality pathology than being suggestive of another psychotic process.

Coupled with the foregoing and emerging from within Mr Padroth's developmental adversity his clinical picture suggests the presence of trauma sequelae seemingly now taking the form of complex posttraumatic stress disorder that has become embedded with his personality structure.'

61 Turning from Dr Gee's report for the moment, your personal circumstances and background are as follows.

62 You are 37 years of age, middle child of three. You endured a childhood marred by social emotional behavioural disadvantages principally stemming from emotional, physical and sexual abuse at the hands of your father. You exhibited behavioural difficulties from toddler age through your early primary schools. These continued throughout your schooling leading to periods of placement at school within the mental health treatment system and special schools. In addition to those behavioural issues you struggled with learning difficulties and compromised intellectual function. You left formal education after Year 10 and you have been gainfully employed for most of your life albeit with a large number of jobs across different fields.

63 Turning to the question of your intellectual functioning. At paragraph 22 of Dr Gee's report he writes,

'... Accepting that Mr Padroth's cognitive capacities were not formally assessed during the current interview having regard to his compromised mental state subjectively he impressed as a man whose quantitative abilities fell within the borderline to low average range of functioning.'

'Coupled with Mr Padroth's enduring emotional and behavioural issues he displayed notable learning difficulties and compromised intellectual functioning. Indeed during assessment by Ms Duncan-Watt on 03/03/98 when he was aged 14 Mr Padroth's cognitive capacities were assessed using the Wechsler Intellectual Scale for Children III. At that time he demonstrated a verbal IQ that fell within the borderline to low average range QIV equals 76 to 88, performance IQ in the borderline to average range PIQ 76 to 92 and a full scale IQ falling within the borderline to low average range FSIQ equals 75 to 86. Similarly a literary assessment completed in March 1991 when Mr Padroth was 15 years old noted that he demonstrated a reading equivalent of age of 12.1 years, a compensation equivalent age of 10.6 years and a spelling age of 10.7. Performance that was seen to be well below his chronological age.'

'Having struggled to formulate an identity beyond those adverse childhood adolescent experiences after completing Year 10 and leaving school Mr Padroth nonetheless appears to have obtained a reasonable degree of stability in his vocational employment pursuits. Specifically he has seemingly maintained gainful employment across much of his adult life, generally wanting to be working including those periods when he spent time in custody was usually working when in prison. Indeed during interview Mr Padroth indicated that his capacity to resist from crime was in part attributable to his employment pursuits. "I do crime when not in a relationship or working".'

66 Thus despite your low level of intellectual functioning you have been able to function in the employment scenario. It has not been suggested that Verdins limbs 1 to 4 are enlivened though it is put that limbs 5 and 6 are enlivened. Namely, that a sentence of imprisonment will weigh more heavily upon you and that a term of imprisonment will have an adverse effect on your mental wellbeing. In that regard the prosecution agree that limbs 5 and 6 are enlivened and this is supported by Dr Gee firstly, at paragraph 18 where he writes:

'Given the likelihood that Mr Padroth will receive a further period of incarceration some consideration of the impact of imprisonment on him given his impaired mental functioning is warranted. Acknowledging that imprisonment often results in considerable distress for the average offender Mr Padroth's impaired mental functioning will certainly see incarceration weighing more heavily on him as it has over the past 12 months than on a person in normal mental health. That is he presents with an enhanced risk of further deterioration in mental health with a likely exacerbation of his anxious and depressive pathology, suicidal ideation, trauma sequelae and psychological escape behaviours. Considerable difficulty accessing specialist psychological intervention in a timely manner, an increased likelihood of victimisation given his dysregulation and impulse behaviour. Further periods of 24 hour lockdown isolation through the use of 'safe cells' or management units in an attempt to curtail his impulsive behaviour, increased distressed as a result of finding himself without access to his already limited support network and difficulty finding suitable placements within Corrections Victoria to accommodate his complex and interconnected pathology. Generally, sentencing Mr Padroth to a term of incarceration was also apt to reinforce his avoidance behaviour and further embed an inept and self-critical identity. Importantly however, any decline in Mr Padroth's mental health needs to be balanced against his capacity to access psychiatric service provision, psychiatric review, medication, monitoring, circumstances that would act to forestall and partially repair any psychiatric - albeit not psychological - decline in functioning.'

67 Finally in that regard in paragraph 44 Dr Gee considers aspects of your recent incarceration in Victoria and in particular your history of suicidal thoughts and self-harm and actual attempt at suicide whilst in custody.

68 I am therefore satisfied that limbs 5 and 6 of Verdins are enlivened and it is necessary to moderate the sentence that I would otherwise impose.

69 During the course of the plea Mr Patton tendered two letters. The first is a letter from your mother which became Exhibit DP4 and is dated 22 November 2021 which relevantly reads:

'...Daniel is my second son, he had a good upbringing with the exception of his father, my then husband. Daniel was diagnosed with mental health issues (including ADHD and schizophrenia) whilst he was in primary school. He was medicated in his early years in an attempt to address his mental health issues. He was a beautiful boy and pleasure to raise despite the physical and verbal abuse from his father. I think because of this he struggled at school, special schools, doctors and some psychologists. He has always had a good work ethic but struggles sometimes due to his mental health issues. Despite these challenges Daniel has always proven to me that he is a very caring soft and beautiful soul and I have always trusted him. This offending is difficult to reconcile with the Daniel I know, trust and rely upon.'

70 Your current partner who has spent almost the entire relationship whilst you have been in custody writes of you in Exhibit DP3.

'...I have been Daniel's partner for over 3 years when he lived in Perth, WA. He always treated me with respect, care and love since the day I met him. He has never been verbally nor physically abusive to me. From what I've seen he has a very loving relationship with his precious 5-year-old daughter and also with his own mother. Daniel has always been supportive as best he could to me and his daughter. We speak regularly, 3 or more times a day with video visits at least once a week.

Daniel has had a lifelong struggle with mental health. He was diagnosed schizophrenic many years ago after being brutally abused physically, mentally and sexually by his father. He was in and out of schools and his mother tried to help him. Daniel did not receive any mental health help whilst here in Western Australia but thankfully he has recently received medical support from the State of Victoria which is very needed to help him cope with this. He has been asking for help for a very long time.'

71 Given the matters that I have adverted to I consider that your prospects of rehabilitation are indeed as Ms Farrell the learned prosecutor has submitted, poor.

72 It has also been submitted by Mr Patton that your pleas of guilty to the theft charges attracts the principles articulated in Worboyes case. There was, in this case, no utility to the pleas of guilty to the $200 and the jewellery stolen from your two victims therefore shortened nothing in either trial. That is simply an absence of a mitigating factor.

73 You have a long history of dishonesty, not only in Victoria but in New South Wales and Queensland. It has further been submitted that you have endured the restrictions imposed in custody due to the pandemic and as set out in paragraphs 27 and 28 of Mr Patton's written submissions prison has been burdensome for you. I accept that as does the Crown.

74 You are a serious sexual offender as defined under the legislation and therefore I must regard the protection of the community from you as the paramount purpose for which the sentence is imposed on the charge of rape though it has not been suggested that a disproportionate sentence should be imposed.

75 That legislative prescription is, of course, consistent with the material that is before me. General deterrence, that is deterring others from similar offending, is also a matter of significance in sentencing you. Women are entitled to feel safe in their own homes, in their own bed and not have sex forced upon them as you did.

76 Your offending was deplorable. Ms Grech did nothing to you that warranted what you did to her in any way. There is a need for there to be just punishment for what you did and you to be deterred from further offending.

77 In sentencing you I must take into account the principle of totality. For you who have been sentenced in Western Australia to the two years' imprisonment and that is a matter I also must take into account in arriving at the sentence which I consider in total to be appropriate in this particular case.

78 On the charge of theft on the indictment where Ms McArdle is the complainant I sentence you to be imprisoned for seven days.

79 On the charge of rape of Ms Grech, Charge 1, I sentence you to be imprisoned for a period of five years and four months. This is the base sentence.

80 On the second charge of theft from Ms Grech I also sentence you to be imprisoned for a period of seven days.

81 Both the sentences for theft will be served entirely concurrently with the base sentence producing a total effective sentence of five years and four months.

82 I declare that presentence detention, excluding today, is 514 days.

83 I set a minimum non-parole period of three years.

84 Are there disposal orders? I also will make the disposal orders as requested.

86 HIS HONOUR: Yes. Are there any other matters, Ms Farrell?

88 HIS HONOUR: And the reporting period is, of course, life.

90 HIS HONOUR: It will be stated that he is to be sentenced as a sexual offender. Anything further, Mr Barreiro?

91 MR BARREIRO: No, Your Honour. Those are the matters.

92 HIS HONOUR: Thank you. The reporting obligations will apparently be sent by my associate to the prison. So 10.30 tomorrow please, Mr Rouse.