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[2009] VSCA 62
Court of Appeal (Vic)
2009-04-03
VINCENT and NETTLE JJA and VICKERY AJA
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Guilty plea - Rape - Indecent act in the presence of a child - Aggravated burglary - Threat to inflict serious injury - Respondent declared a serious sexual offender - Whether sentence manifestly inadequate in all the circumstances - Whether the lack of cumulation in respect of certain counts was an error in the circumstances - Appeal dismissed.
1 This is an appeal by the Director of Public Prosecutions against sentences imposed upon the respondent in the County Court at Melbourne, on 17 June 2008 consequent upon his plea of guilty to three counts of rape (Counts 5, 7, and 16), two counts of committing an indecent act in the presence of a child (Counts 1 and 2), six counts of indecent assault (Counts 4, 6, 13, 14, 15 and 17), five counts of aggravated burglary (Counts 3, 8, 9, 10 and 11) and one count of making a threat to inflict serious injury (Count 12). The respondent was also sentenced on 29 summary charges of wilful and obscene exposure being heard and determined.
2 The respondent admitted two findings of guilt arising from an appearance before the Magistrates' Court at Ringwood on 14 December 1999 relating to the use of a telecommunications service to menace. He was, on that occasion, released without conviction upon entering into a bond to be of good behaviour for 12 months with the special condition that he complete the Adult Sex Offender Program within 5 months.
3 After hearing a plea in mitigation of penalty, the sentencing judge imposed the following terms of imprisonment:
The total effective sentence imposed in relation to those offences was 15 years' imprisonment.
In respect of each of the summary charges, the Respondent was sentenced as follows:
The total effective sentence imposed on the summary charges was, accordingly, 2 years' imprisonment which the sentencing judge ordered be served cumulatively upon the total effective sentence imposed for the other offences. Accordingly, the overall total effective sentence imposed was 17 years' imprisonment. The sentencing judge fixed a period of 14 years' imprisonment before the respondent was eligible to
4 The circumstances of these various offences have been set out in written form in a Crown Opening which was before the sentencing judge. Rather than recite them, an edited version of that document is annexed to this judgment.
5 The respondent's background was described by the judge in her sentencing remarks:
You are 30 years of age, having been born on 24 March 1978. When you were very young, around six years of age, your parents separated. Your father was a violent man particularly towards you and was a man engaged in criminal activity. At one stage, during your primary school years, you and your mother lived with your maternal grandparents. Your grandmother was a paranoid schizophrenic. Your mother, in her statement to the police, said there were some difficulties because of your grandmother's mental state, however you seemed to get on well with your grandparents. Your grandmother has since died.
Your mother then re-partnered and is still in that relationship. Your mother and her husband, Mr Wallace, have two children, a 16 year old son and a 10 year old daughter. After you completed primary school you then went to Mooroolbark Technical School. You told Mr Joblin that you had significant problems at school including bullying and abuse. Understandably this caused you to be a truant. As a result you have had difficulties with literacy since, and Mr Joblin reported that you showed frustration when reading the brief of evidence.
After you left school, you have always been a person in employment. I accept Mr Lewis's submission that notwithstanding any psychological or emotional difficulties you have had, you have always maintained a reputation as a hard worker with a good employment record and you have been well thought of by your employers. You worked for a take away food business for nine and a half years, then a car restoration firm for 18 months. After this stage you worked for four years for a timber company and then drove a truck for 12 months. Mr Hutt, who is the owner of Churchill Building and Maintenance Company, speaks highly of your work ethic. His company maintains and reworks truck parts. He set out in glowing terms how responsible you are in your job and how clients are very appreciative of your efforts.
When you worked for the take away food business you met your wife Rebecca, with whom you have two children now aged five, a daughter, and a son, two. That relationship has ended. On 26 December 2007, when you were in prison your wife told you that the relationship had finished. You told Mr Joblin that the relationship with your wife had been deteriorating over the previous few months. However, you have maintained contact with your children with the agreement of your wife.
...
Your mother, Karen Wallace, told the police of a number of concerns she had during your adolescence in relation to sexual matters. As to the prior finding of guilt, she explained the circumstances of that to the police which was that you had told her you had randomly selected a name from a telephone book and called this particular woman because it excited you. At the time you were married but your mother did not tell your wife. She said that when you were growing up you had exposed yourself at a young age of 15 to a local woman, and that you had been over the years ringing sex telephone lines on a regular basis.
6 Mr Ian Joblin, a very experienced forensic psychologist, reported that the respondent did not appear to demonstrate any significant psychological dysfunction and that IQ testing indicated that he had a verbal IQ of 68, a performance IQ of 84 and a full scale IQ of 74.
7 Unsurprisingly, Mr Joblin expressed the opinion that the respondent had a serious sexual problem and said:
The issue of obtaining sexual gratification from experience with older women, such as the victims in this case, is clinically very complex and interesting. Mr Youlten reported that he is not even sure that he received the gratification from these offences that he anticipated, or about which he had fantasised preceding the offences. In my experience that is fairly typical of serial offenders, where there is a strong build up of excitement preceding the actual offences, which is often less gratifying than had been anticipated. Thus, there is often a degree of annoyance and anger, and certainly that provides the basis for further offending.
The issue of older women being chosen as sexual objects in this case does not seem to refer solely to the existence of the psycho-sexual disorder where aged women are preferred. One would have little hesitation, an indication that the serial nature of offences against older women was sexually exciting or sexually gratifying, and that any discussion by Mr Youlten to the contrary would be inappropriate simply because the continued nature of the offending would not have occurred had the offending not been gratifying.
That, however, must be seen in the context of the qualification outlined above where the gratification may have been less than anticipated.
Although the majority of the women were elderly I consider the age of the victim was not your sole focus but it was the vulnerability of each in that each was an easy target. You committed these offences against women who were taken by surprise in their own home who lived alone, be it in a retirement village or their own home or were alone in a place of work. Some of the women were younger, in their 40s and 50s, some were considerably younger, being nurses, young women with cognitive impairment and children who were present. When your offending is analysed your offending was directed (sic) women who were alone where you considered the risk was low that you would be caught or detected.[2]
9 A psychiatrist, Dr Walton, told the Court that he had examined the respondent on two occasions after he was arrested. He opined that he was probably suffering from depression at the time of the offending, but that this was neither central to or an explanation for his behaviour.
Particulars
In fixing terms of 7 years imprisonment in respect of each of counts 5 and 16, a term of 12 months imprisonment in respect of count 12 and a term of 8 years imprisonment in respect of count 7, a total effective sentence on Presentment W01429672 of 15 years imprisonment, a total effective sentence on the 29 summary charges of 2 years imprisonment, an overall total effective sentence of 17 years imprisonment and a non-parole period of 14 years imprisonment, the sentencing Judge -
(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;
(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;
(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d) failed to sufficiently protect the community from the offender;
(e) failed to have sufficient regard to the maximum penalty prescribed for the offences;
(f) failed to have sufficient regard to the nature and gravity of the offences;
(g) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;
(h) failed to have sufficient regard to the impact of the offences on the victims;
(i) failed to have sufficient regard to aggravating features of the offending, -
(j) gave too much weight to mitigating factors concerning the offender, in particular -
Particulars
In failing to direct any cumulation in respect of any of the sentences imposed on counts 4, 5, 6, 12, 13, 14, 15 and 17 the sentencing Judge -
(a) failed to properly apply the principle of totality, namely that the total effective sentences failed to reflect the totality of the offending conduct and were not 'just and appropriate' in all of the circumstances;
(b) failed to properly reflect the grave nature of the offending conduct.[3]
11 Counsel appearing on behalf of the Director has not contended that the judge fell into error in any specific respect. In other words, it was not disputed that her Honour took all applicable sentencing principles and relevant factual considerations into account and it was not argued that she erred either by way of omission or commission with respect to any of them. However, he argued, an overall assessment of the circumstances of the case and the relevant sentencing principles to be applied reveal that the individual sentences and the orders for cumulation were manifestly inadequate to the extent that they demonstrate error in principle.
12 There is no need to set out the principles upon which this Court is required to act when considering an appeal by the Director of Public Prosecutions against sentence. They are both well established and regularly applied in this Court.[4] In the present case, as we have pointed out, it has not been submitted that the sentencing judge fell into any identifiable error but essentially that the dispositions at which her Honour arrived cannot be seen to reflect the extreme seriousness of the respondent's offences and his level of personal culpability for them.
13 It is apparent that the judge was mindful of all of the matters to which our attention has been drawn in this context and directly adverted to almost all of them. There is no need to set out the passages in the sentencing remarks in which this was done and sufficient to state that her Honour outlined, in relation to each of the offences, the conduct involved, the nature of the offending, the age and circumstances of the victim and the location at which the offence was committed. She referred to the number of victims, their vulnerability and her awareness of the impact of the respondent's conduct upon them, having read the victim impact statements of 24 of them, including those of D and J. The judge made specific reference to the effect on the broader community of the activities of the respondent, the prolonged period involved and the relevant sentencing principles.
14 The individual sentences in respect of which a complaint of manifest inadequacy has been made by the Director (counts 5, 6, 12 and 16) were very lenient in the circumstances but apparently fall within the parameters of current sentencing practice as ascertainable from the published statistics. As her Honour's sentencing remarks make clear, the judge was concerned to impose individual sentences and a total effective term that represented an appropriate synthesis of the many factors to which she was required to take into account. She stated, when addressing this task -
On the material I have before me, I sentence you on the basis that your prospects of rehabilitation that is not offending are not good, although you have no prior convictions, only one finding of guilt, and you seem to be gaining some insight and thus have shown some remorse. I have accorded more weight to matters of deterrence, both general and specific, denunciation, punishment and protection of the community, than I have in relation to matters of rehabilitation. However having said that, I have not ignored the treatment by professionals in the prison system to which Dr Walton referred as being equipped to treat you although your low IQ gives you difficulties in articulating your problems. I also take into account the need for you to be closely monitored upon your release from prison. Consequently I cannot rule out that with continued treatment and close monitoring you will be rehabilitated and not offend again.
I have sentenced you on the basis that you have caused an enormous amount of anguish and emotional turmoil to each of these women, in particular those whose houses you entered and raped them, namely [D] and [F], as well as to each of the women, in front of whom you wilfully and obscenely exposed yourself, which as I have stated would have been a revolting sight, in particular to those to whom you repeatedly offended against. Any sentence I impose must be proportionate to the criminality involved and must not be crushing. The principles of totality apply. I take into account in your favour that the sentence that I am to impose will be the first prison sentence that you have served and it will be a substantial prison sentence.
15 It is reasonable to infer from those remarks, that there has been some moderation of the individual sentences and the orders for cumulation made in order to effect what her Honour perceived as an adequate synthesis.
16 Applying the principles upon which this Court is required to operate and to which we have adverted, including the principle of double jeopardy, we do not consider that either any of the individual sentences imposed, the total effective sentence handed down or the non-parole period fixed were so far below that which was required in the proper exercise of sentencing discretion that the intervention of the Court would be justified.
1. The respondent was born on 24 March 1978. During the period of the offending, he was aged between 27 years and 29 years.
2. There are a total of 28 female victims whose ages at the time of the offences range from 12 - 89 years.
3. The circumstances of the offending are that over the course of approximately two years the respondent routinely exposed himself to, and masturbated in the presence of elderly females (in the main) living alone. The offences occurred in the Kilsyth, Montrose, Croydon and Ringwood areas.
4. In the majority of cases the exposures occurred in retirement villages, in some cases the offending occurred in the front and rear yards of private homes. The respondent on many occasions returned to the same premises. In some instances, young children were present with elderly relatives and observed the exposure/masturbation. On some occasions the respondent entered the premises to masturbate therein.
5. The respondent's behaviour escalated to rape on two occasions. These victims D aged 89 years and J aged 74 were subjected to penile and digital penetrations as well as touching. In both cases the respondent was armed with a knife and made threats.
6. Due to the nature of the offending, the period of the offending and the target age group the respondent became known in the media as the 'Kilsyth Rapist'. Entire communities were terrified for the two years he was at large.
7. Throughout much of the offending the respondent wore a balaclava or a hood over his head.
8. Between 6.00pm and 7.00pm on 29 June 2005, the respondent attended a retirement village in Croydon. At this time, MG, aged 60, and her grand-daughter VG, aged 12, were present in unit 6. The respondent stood near the window, exposed his penis and began masturbating. This was observed by both MG and VG. The respondent masturbated for approximately 20 minutes and ejaculated before walking off. MG called a neighbour who then called the police - Summary Charge 91 (Wilful and obscene exposure).
9. At this time, the respondent and his wife and children were residing in Croydon North.
10. At about 8.00pm on 1 July 2005, the respondent returned to [the premises] (three days after his first attendance). MG and VG were again present therein. The respondent stood outside the window, exposed himself and masturbated. He was seen by VG who alerted her grandmother. The respondent stuck his finger up at VG and pushed his crotch forward. MG called 000 and the respondent walked away - Summary Charge 92 (wilful and obscene exposure).
11. At approximately 8.30pm on 5 July 2005 (four days after the last incident), the respondent returned again. MG and VG were again present therein. The respondent stood outside and exposed his penis and masturbated. MG went to the front door and yelled out to the respondent 'what the bloody hell do you think you are doing?' The respondent continued to masturbate for a short time and then pulled his pants up and walked away. MG pressed the distress button in her Unit and dialled 000 - Summary Charge 93 (wilful and obscene exposure).
12. Count 1 on the Presentment relates to the incidents outlined in Paragraphs 2, 4, and 5. These incidents have been 'rolled up' into a single count - Count 1 (Indecent act in the presence of a child).
13. On 8 September 2005, between 5.30pm and 7.00pm the respondent attended at another retirement village in Croydon. NC, aged 73, was present in her unit watching television. She saw the respondent standing at her window and made eye contact with him. The respondent walked towards the front door where NC saw the respondent with his penis out and 'rolling it between his hands'. She asked the respondent what he was doing. The respondent said 'I've got something for you'. NC told the respondent that she would call the police and walked to the telephone. She called 000 and spoke to the operator. The respondent remained outside the unit. She then rang her neighbour and asked him to come over to her unit. By the time he arrived, the respondent had walked off - Summary Charge 94 (Wilful and obscene exposure).
14. At about 11.00pm on 8 October 2005, the respondent attended a retirement village in Kilsyth. ML, aged 79, was watching television in her unit when she noticed her back yard security light flicking on and off. She walked into her kitchen area and saw the respondent in the rear yard, through the sliding patio door. The respondent's pants were half way down his legs and his penis was exposed. ML went to the telephone and called her neighbour. By the time he arrived, the respondent had left. The following morning ML noticed that her garden beds and pot plants had been disturbed and a fence paling was missing from the rear fence - Summary Charge 95 (Wilful and obscene exposure).
15. At about 11.20pm on 23 November 2005, the respondent attended a house in Croydon North. DC, aged 78, was in her bedroom with her cats when they suddenly ran off. She went to investigate and saw that the back door and a window in the spare bedroom were open. She grabbed a torch and walked out into the back yard. The respondent was standing in the yard behind a tree. He walked out from behind the tree and walked towards her. The respondent pulled his shirt up to cover part of his face, but his pants had been pulled down and his penis was exposed. DC let out a scream and walked back towards the house. The respondent kept walking towards her. She said 'if you come any nearer I will bloody hit you.' The respondent turned around the walked away. DC returned to the house and called police who attended shortly thereafter - Summary Charge 102 (Wilful and obscene exposure).
16. At about midnight on 3 March 2006, the respondent attended at residential premises in Croydon North. KT, aged 42, was present therein with her daughter A and her niece J. A was in the bedroom and KT was using the computer when she heard noises outside the house including scratching noises along the front windows. A called out saying that she could hear voices outside. KT looked out the window and saw the respondent with his penis exposed. He was masturbating with his right hand. KT asked J to call 000 as the respondent walked out of the garden looking 'relaxed' - Summary Charge 96 (Wilful and obscene exposure).
17. In May 2006, the respondent and his wife and children moved to Croydon.
18. On 4 May 2006 at approximately 7.45pm the respondent attended at the Mooroolbark Baptist Church Hall at Hull Road, Croydon. OM, aged 18, was leading a group of about 40 girls aged between 10 and 18 years, in the 'Girls Brigade'. OM and EK, aged 14, saw the respondent through a glass door. The respondent was not wearing pants, but his face was covered with a black cloth. He grabbed his penis with both hands and he was moving his hands in an up and down motion. The respondent masturbated for about 3 minutes and was swaying from left to right. OM and others closed the curtains and locked the doors. The police were called and the respondent walked away - Count 2 (Indecent act in the presence of a child) and summary charge 97 (Wilful and obscene exposure).
19. At about 11.50pm on 1 June 2006, the respondent attended at residential premises in Maroondah Highway Croydon. TP, aged 27, was inside her unit with a friend RX, aged 24. RX was about to leave when TP noticed that the back door in the garage was wide open. They searched outside and saw the respondent standing in the rear yard of the adjacent unit. He was wearing a balaclava and his pants were down around his ankles. The respondent was masturbating with his right hand whilst holding a white cloth in his left hand. The respondent continued to masturbate as TP and RX verbally abused him. They walked back into TP's unit, locked the door and called the police - Summary Charge 98 (Wilful and obscene exposure).
20. On 23 June 2006 at approximately 6.30pm the respondent returned to the retirement village referred to in paragraph 13. LD, aged 69, was present in her unit and saw the respondent outside her kitchen window, standing at the end of the tiled area on the patio. The respondent's penis was exposed and he was masturbating. LD grabbed her keys and ran to a neighbouring unit where the police were called - Summary Charge 99 (Wilful and obscene exposure).
21. At about 12.30am on 15 July 2006, the respondent attended at the nursing home at a retirement village in Kilsyth. Nurse MS, aged 53, was in the main foyer area and saw the respondent standing at the entrance. The respondent's pants were pulled down to his mid-thigh area, his penis was exposed and he was masturbating. He was wearing a hood or beanie over his head and a white cloth or mask was covering his face. MS picked up the telephone and dialled 000. The respondent stood there and watched her make the call before walking away - Summary Charge 100 (Wilful and Obscene exposure).
22. The respondent returned to the retirement village just mentioned about five weeks later, on 23 August 2006. Just after 7.00pm FWD, aged 89, was preparing a meal in her kitchen. She had removed her hearing aid. Unbeknown to her, the respondent entered the unit and approached her from behind (Count 3 - aggravated burglary). He was holding a knife and grabbed FWD firmly on the shoulder. The respondent taped her mouth shut. He placed the knife blade near the left side of her throat and placed further tape across her eyes. She pleaded with the respondent not to hurt her. She kept screaming: 'What are you going to do to me? What are you going to do? Don't hurt me. Don't hurt me.'
23. The respondent walked FWD into her bedroom and sat her down on the edge of the bed. He said: 'get your gear off ... take your pants off.' She stated that the respondent spoke with a stern voice 'but had a calmness about him.'
24. The respondent pushed FWD back on to the bed and pulled her pants off. He instructed her to remove her underpants and her top. She started to remove her top, but the respondent became impatient and 'whacked it off over me head.' He fondled her breasts (Count 4 - indecent assault) and then inserted his finger into her vagina and applied lubricant to the vaginal area (Count 5 - rape). The respondent then grabbed her hand and placed it on his erect penis and 'was rubbing my hand around it and into his testicles' (Count 6 - indecent assault). The respondent inserted his penis in FWD's vagina (Count 7 - rape).
25. The respondent went into the bathroom and turned the taps in the shower and set the water temperature. He instructed FWD to have a shower and told her to 'wash yourself with plenty of soap'. The water loosened the tape on her eyes and mouth and these fell to the shower floor. When she finished showering, the respondent told her to cover her face with a towel and return to the bedroom. He put the washing machine on. FWD asked the respondent why he would attack an old lady.
He said 'I like grey hair'. She stated that the respondent was 'very methodical ... it was like as though it was a routine and he's knowing exactly what he's going to do'.
26. The respondent left the Unit telling her not to ring the police. FWD shut the door and locked it. She ran to the phone and pressed the red emergency button on her telephone and was connected to Allcare Monitoring Systems. She spoke to the operator, Karen Milewicz, and reported the attack. This call was logged at 7.45pm AEST. Ms Milewicz immediately contacted Victoria Police and the first police officers arrived at 7.49pm.
27. FWD was conveyed to the Austin Hospital, where she was examined by Forensic Medical Officer, Dr Luigi Marino. Dr Marino noted the following recent injuries:
(i) A patch region of abrasions covering a 1.5cm diameter on the inner aspect of the right labium minus (inner vaginal lip), with a thin layer of blood oozing from therein.
(ii) Abrasions with some fresh blood in the navicular fossa (area inside the labia minora at the base of the vaginal vestibule) and posterior fourchette (small fold of membrane connecting the labia in the posterior part of the vulva).
(iii) A few abrasions, with fresh bleeding, on the lower left vaginal vestibule.
(iv) No injuries were detected on the head, neck, chest, arms or legs.
28. At about 12.40am on 14 October 2006, the respondent attended at a block of units in Croydon North. HZ, aged 32, was present therein watching television. She heard footsteps at the front of her unit and then heard a tap on the window. The respondent, wearing a hooded top, pressed himself against the glass. He placed his hands down the front of his pants and masturbated, whilst making eye contact with HZ. She used her mobile telephone to call 000 and then called her neighbours. The respondent walked away - Summary Charge 66 (Wilful and Obscene Exposure).
29. On 10 December 2006, the respondent returned to the retirement village in Croydon where he had previously offended against MG and VG. AB, aged 71, was present in her unit at number 19 at approximately 1.45am. She heard a strange noise coming from her front porch area. She opened the front door (whilst the security door was still locked) and saw the respondent, who was wearing a black beanie. The respondent was naked from the waist down and was smiling. His penis was exposed. AB called 000 and a neighbour. The respondent walked away - Summary Charge 67 (Wilful and Obscene Exposure).
30. At about 10.30pm on 15 December 2006, the respondent attended at a further block of units in Croydon. BR, aged 24, was present in the loungeroom wrapping Christmas presents. BR heard a loud thump on the front porch. She looked outside the window and saw the respondent standing near the carport area. The respondent's jeans were open, his penis was exposed and he was masturbating. A white turban-like cloth covered his head and upper body.
The respondent was pointing at BR as he was masturbating. She called 000 and the respondent walked out of view. A short time later, the respondent knocked on the back window and ran from the back of the house to the front of the house knocking on the windows along the way. By the time BR's fiancé, arrived home a short time later, the respondent had left. - Summary Charge 73 (Wilful and Obscene Exposure).
31. At about 11.30pm on 29 December 2006, the respondent returned to the home of DC, aged 78. She walked into the kitchen and noticed that there was water on the bench and in the kitchen sink, and that the curtain and the laundry floor were wet. DC grabbed her torch and went out into the backyard. She saw that the garden tap had been turned on. The hose had been attached and was pointing towards the laundry door. DC noticed the respondent standing in the backyard. He had a light coloured piece of material covering his face, which was tucked into a beanie. The respondent's penis was exposed and he was holding it with both hands. DC yelled out 'you need to get going and stop making a habit of this ... you need to get going or you are going to be in big trouble'. The respondent turned and ran away. She went back inside the house and called police - Summary Charge 55 (Wilful and Obscene Exposure).
32. Between Christmas Day in 2006 and 18 January 2007, the respondent attended at yet another lodge in Croydon on several occasions. Over the course of three visits, the respondent befriended CI, aged 56, who was a resident. She has a cognitive impairment and he gave her cigarettes.
Over the course of these visits, the respondent made various sexual comments to CI and on one of these occasions exposed himself and masturbated in her presence - Summary Charge 26 (Wilful and Obscene Exposure).
33. Between 12.00am and 12.50am on 18 January 2007, the respondent returned to these premises. He knocked on the window of the room shared by CI, and KS, aged 43. KS has a cognitive impairment. She heard the knocking and woke up. She saw the respondent, who she recognised as 'Richard', standing at the window masturbating. He was holding his underpants with his left hand and masturbating with his right hand - Summary Charge 27 (Wilful and Obscene Exposure). KS saw the respondent masturbating a second time, this time inside the building, near the industrial heaters - Count 8 (Aggravated Burglary) and Summary Charge 104 (Wilful and Obscene Exposure).
34. At about 12.50am on 18 January 2007, the respondent walked to the neighbouring facility. CAB, aged 51 was lying in bed in room 16. She looked at her watch and got up at 12.50am to go to the bathroom. On her way back to the bedroom, CAB saw the respondent standing inside the doorway (Count 9 - Aggravated Burglary). The respondent was masturbating. His face was covered with a scarf or balaclava. CAB went to the telephone and pressed the distress button to alert the supervisor. The respondent continued to masturbate in the doorway. CAB closed and locked the front door and returned to her bedroom.
The respondent walked around the unit and approached the bedroom window. He said 'I want to lick your pussy' and kept repeating this. CAB told the respondent to go away and he left at about 1.15am - Summary Charge (Wilful and Obscene Exposure).
35. Between 5.45am and 8.00am, the respondent returned to the premise where he had offended against CI. The respondent entered and opened the door to the room occupied by OK, aged 73. OK has a cognitive impairment. She saw the respondent standing inside the doorway. His mouth was covered with a handkerchief and a cap was pulled down over his eyes. OK screamed and the respondent ran off. OK reported the incident to a worker at Bellden Lodge - Count 10 (Aggravated Burglary).
36. At about 2.20am on 14 February 2007, the respondent returned to the retirement village at which he offended against VG and MG. MK, aged 71, was on the computer in her bedroom when she heard noises at the front of her unit. Her front door bell rang once. She walked into the kitchen and saw the respondent standing on her front balcony masturbating with his right hand. He was wearing a dark coloured beanie. She ran to her bedroom, slammed the door shut and turned off the lights - Summary Charge 69 (Wilful and Obscene Exposure).
37. At about 10.20pm on 17 February 2007, the respondent attended at the retirement village at which he offended against MC. PH, aged 67, was inside her unit watching television. She noticed something out of the corner of her eye and saw the respondent standing outside her front door, which was open. He was waving his flaccid penis up and down. She told the respondent to go away and pulled the front door shut - Summary Charge 74 (Wilful and Obscene Exposure).
38. At about 10.45pm on 25 February 2007, the respondent returned to the house of DC in Croydon North for the third time. DC was getting ready for bed when she saw the respondent walking across her back yard. His pants were down and his buttocks were exposed. She called the police and the respondent walked off the property through a hole in the rear fence - Summary Charge 103 (Wilful and Obscene Exposure).
39. At about 5.50am on 6 March 2007, the respondent went to a room in a lodge in Croydon North shared by CAB and BT, aged 60. BT was using her computer. She heard a noise at the fly wire screen door and saw the respondent standing there masturbating. His right hand was moving rapidly up and down at his groin whilst his left hand was holding up his pants. The respondent was wearing a balaclava that covered his face. BT yelled out to the respondent and went to her bedroom and closed the door. She buzzed for the overnight carer and reported the incident. The police were called - Summary Charge 75 (Wilful and Obscene Exposure).
40. At 6.05pm on 15 March 2007, the respondent attended at a retirement village in Kilsyth. KS was a nurse working at the court. She was attending to a patient on the ground floor and heard the crunching of leaves outside the window. She looked out the window and saw the respondent masturbating his penis with his right hand. She locked the doors to the hostel and called the police - Summary Charge 101 (Wilful and Obscene Exposure).
42. At approximately 9.45pm on 23 March 2007, the respondent attended at a retirement village in Mount Dandenong Road in Croydon. HT, aged 62, was in her unit, reading a newspaper. She heard a noise outside her unit and saw the respondent standing outside the front window. The respondent was wearing a dark-coloured hooded jacket with the hood covering his face. His pants were down around his ankles and his penis was exposed. The respondent was masturbating and making grunting noises. She called 000 and the respondent ran off - Summary Charge 78 (Wilful and Obscene Exposure).
43. At about 8.00pm on 6 April 2007, the respondent returned to this retirement village. PQ, aged 83, was inside her unit and was watching television when she heard a moaning noise coming from outside. She opened the rear door and saw the respondent squatting on the ground, facing the door. The respondent was wearing a black hooded top with the hood over his head. He was masturbating and making 'moaning noises'. She shut the door and called 000. The respondent left. Police arrived soon after and upon a search of the rear yard, located a purple hair tie which was subsequently linked to the respondent through DNA analysis - Summary Charge 83 (Wilful and Obscene Exposure).
44. At about 6.30am on 21 April 2007, the respondent returned to HT's unit. This was the respondent's third visit to this retirement village in four weeks. The respondent again wore a dark jacket with a hood pulled over his face. The jacket collar was buttoned and pulled across his lower face. She observed the respondent masturbating. His pants were part way down, he was moving his hips back and forth and he was 'moaning and groaning'. She called 000 and the respondent ran away - Summary Charge 80 (Wilful and Obscene Exposure).
45. At around midnight on 26 April 2007, the respondent attended at a house in Croydon. PT, aged 63, was lying in bed reading and heard a scratching noise outside her bedroom window. PT looked outside the window and saw the respondent standing there with his penis exposed. PT closed the blinds and called police. The respondent had previously visited this street - Summary Charge 86 (Wilful and Obscene Exposure).
46. On 27 April 2007, at about 7.45pm, BP, aged 76, was present in her unit in a village in Kilsyth to which the respondent had earlier gone and was washing up in the kitchen. She saw a shadow outside the window. Thinking it was a neighbour, she opened the door. She saw the respondent standing outside her unit, masturbating. She shut the door and reported the incident to the nurses' station - Summary Charge 88 (Wilful and Obscene Exposure).
47. At about 6.50pm on 18 May 2007, the respondent returned to this location. JW, aged 74 was present in her unit and was preparing to go out to the theatre. She heard her garage door going up and down. The garage door is remote controlled. She called her neighbour, and asked him to wait on the telephone while she went to investigate. The respondent had entered the garage, obtained the remote control from her vehicle and was using it to open and close the garage door (Count 11 - Aggravated Burglary). He was wearing a black balaclava and his face was covered with a piece of white fabric.
48. JW walked out her front door and noticed that the garage door was up. She checked her vehicle for the remote control but could not locate it. She walked out through the rear door in the garage to the backyard of her unit. The respondent came up behind her and grabbed her from behind with his right hand. He was holding a knife in his left hand and placed this hear JW's throat. The respondent said 'be quiet or I will slit your throat' (Count 12 - Threaten Serious Injury)
49. The respondent walked her to a dark area of the garden and instructed her to remove her pants. She told the respondent that she didn't want to remove her pants and the respondent said 'do it or else'. She started to pull down her pants, but the respondent was impatient and yanked these down to her knees. The respondent told JW to kneel down and she complied. The respondent undid his pants and pulled them down to his mid-thigh area. His penis was erect. The respondent told her to take hold of his penis. She told him that she did not want to do this. The respondent reminded her about the knife in a threatening and stern manner. JW held the respondent's penis in her right hand. The respondent asked her whether she liked this (Count 13 - Indecent Assault).
50. The respondent then instructed JW to lick his penis. She pleaded with him but he told her she had to do it. She states that she 'just touched somewhere on the top of his penis'. The respondent told her to do it again and she touched his penis with her tongue three times in total (Count 14 - Indecent Assault). The respondent told her to stand up and he walked behind her, still with one hand on her shoulder. He rubbed his other hand over her buttocks and touched her on the outside of her vagina (Count 15 - Indecent Assault).
51. The respondent then inserted one finger inside her vagina and moved it around. JW states that this was rough and painful (Count 16 - Rape).
52. The respondent removed his finger, touched JW on the outside of her vagina again and then licked his finger. He told her that she 'tasted nice' and instructed her to get back on her knees. She asked the respondent what his mother would think of what he was doing. He told her that he hated his mother, that she had abused him and that he had left home at age 14 because of the abuse.
53. The respondent told JW to hold his penis again and when she resisted, he said that she could either rub his penis or have sex with him. She rubbed the respondent's penis (Count 17 - Indecent Assault). She told the respondent that he was a coward and he told her that she would have to watch him 'wank'. The respondent masturbated himself to ejaculation.
54. JW talked to the respondent about counselling. The respondent told her that he had been to counselling but had only been prescribed medication. She asked the respondent if he wanted her to pray for him. The respondent cried and said 'yes'. He said 'I'm so sorry, I shouldn't have done it'. JW pulled her pants back up and walked towards the front of her unit The respondent walked off along the path. JW's neighbour, was waiting at the front of unit 4 and he saw the respondent walk away. She told the neighbour that she had been assaulted and he immediately called the police.
55. She was conveyed to the Monash Medical Centre whee she was examined by Forensic Medical Officer, Dr Glenn Howlett. Inter alia, Dr Howlett observed a 1cm incision wound to the mild right labia minora.
[1] The respondent was declared to be a serious sexual offender on counts 3-7, 11 and 13-17 pursuant to sections 6A- 6C of the Sentencing Act 1991.
The respondent was registered in accordance with the Sex Offenders Registration Act 2004 and, pursuant to section 34 of that Act, was notified by the sentencing judge that he was required to report for life.
[3] Grounds of Appeal, dated 9 July 2008.
[4] R v Clarke [1996] VICSC 30; (1996) 2 VR 520, 522; DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542, [10].
DPP
Youlton [2009] VSCA 62
(1996) 2 VR 520