R v Dupas [2000] VSC 356

Supreme Court of Victoria|2000-08-22|Before: VINCENT, J.

Peter Norris Dupas, you have been found guilty by the jury empanelled upon your trial in this Court of the murder at Northcote in the State of Victoria on the 19th day of April 1999 of Nicole Amanda Patterson.

It is now my responsibility to impose sentence upon you.

Miss Patterson, who was 28 years of age at the time, carried on practice as a qualified psychotherapist and youth counsellor. She worked at the Ardoch Centre, an organization which endeavours to assist homeless or disadvantaged young people, and she also assisted in activities associated with the Australian Drug Foundation.

However, she had an ambition to develop her own private practice. To this end, she inserted an advertisement in a local newspaper circulating in the Northcote area in which she lived. It indicated that Miss Patterson engaged in the counselling of persons with respect to relationship and sexuality problems. The advertisement also made clear that strict confidentiality concerning any disclosures made by clients to her would be maintained. I suspect, but do not find, that your interest was excited by these references as you are a secretive individual with very disturbed sexuality.

When and how you learned that the person who inserted the advertisement was an extremely attractive young woman is unknown. Perhaps, as the prosecutor suggested to you in cross-examination, you saw a photograph of Miss Patterson which appeared in a local newspaper, although you denied this was the case.

However your attention was attracted to her, it is evident that you must have selected her as a potential victim some time before her death. Without initially appreciating the significance of the answer in the course of cross-examination, you made the startling admission that you first attempted to contact her by calling her on a public telephone a day or so before 3 March 1999, that is, approximately six weeks before she was killed.

You claimed that you are unable to recall where the particular telephone was located and you were evasive when asked about your reason for adopting this course, rather than ringing her from your home. It is highly likely that you were already seriously contemplating the possibility of attacking her at that time.

I doubt that we will ever learn how you went about the task of gaining the information that you required to assess the extent of her vulnerability so that you could feel confident about the safety of proceeding further, including the need to ensure that Miss Patterson would be alone and unsuspecting at the time that you chose to put your intentions into effect.

Although you had obtained her mobile telephone number and would probably have experienced little difficulty in speaking to her had you really wished to do so, for some unexplained reason you made a number of telephone calls to her home between 3 March and 12 April when the appointment for you to see her was made. There is, in the circumstances, force in the prosecutor's contention that you were stalking Miss Patterson trying to ascertain her movement patterns and endeavouring to determine whether there was ever anyone else present in the house in which she lived and conducted her practice.

It is also clear from the history of your earlier offences that you possess the ability to present yourself as quite inoffensive to those to may be described as your targets, so that your unsuspecting victims are caught unawares when you strike. I have little doubt that on the occasions on which you did speak to Miss Patterson you adopted the same approach, exercising significant skills in manipulation.

Ultimately on the morning of Monday 19 April 1999, and not long after your partner, Miss Cruz, with whom you were living in a house at Pascoe Vale, left for work, you set out for your victim's home. She was, it appears clear, expecting a client named Malcolm who was suffering from depression, as those words were found on a note in her handwriting that was subsequently located by the police.

One of the relatively few statements that you had made in the witness box which I accept is that you indicated in the telephone conversations which led to the appointment being made that you were experiencing problems in your relationship with your partner arising from a low level of self-esteem. You stated in your evidence that she was nice to you and responded to your concerns. This would have been exactly the situation which you were hoping to achieve.

I have no doubt that Miss Patterson experienced no sense of danger as she prepared for an appointment with a client who had presented such issues and who was to see her at the innocent hour of 9 o'clock on a Monday morning.

She almost certainly felt comfortable and secure in the safety of her own home in a normal suburban street at that hour and on an ordinary working day.

We are unlikely ever to know precisely what took place upon your arrival or for how long you were present in the house before you commenced a savage attack upon Miss Patterson. The terror experienced by her at that moment, which you had contemplated in your perverted imagination and for which you had carefully planned, now became a terrible reality. You struck at her again and again, using a knife capable of inflicting deep wounds. That weapon has never been found.

Defensive injuries to her hands provide silent evidence of her unsuccessful attempts to defend herself against what must have been a sustained and determined assault.

Altogether Miss Patterson received 27 stab wounds. Her breasts were completely cut from her body, probably, but not necessarily, after death in a depraved act of contempt. They were never located and it appears likely that in a further act of obscenity they were taken as a kind of trophy.

After checking the house to ensure that there was nothing left which might incriminate you, and collecting her handbag and driver's licence, also presumably as trophies, you returned to your home where you resumed your normal daily activities as if nothing had occurred and with your urge to kill, at least temporarily, sated.

At that stage, you must have felt reasonably confident that you were safe from detection. But you had made two mistakes. First, although you had given the false name Malcolm and had provided Miss Patterson with a false telephone number, the number was, in fact, that of a student who you had engaged to do labouring work for you.

Second, although you appear to have partially searched the premises, you had not seen Miss Patterson's diary which was underneath some other items on a couch in the living room. It contained a reference to the appointment and, importantly, the incriminating telephone number. Not surprisingly, when the investigating police members became aware of your possible connection with that number, you quickly came under suspicion. You were arrested and a search of your house was conducted, in the course of which important evidence that led to your conviction was found.

As this summary suggests, there is much that is unknown concerning the selection of your victim, the preparations which you undertook to gain access to her and exactly what took place when you arrived at her home.

However, the information that has emerged enables the finding to be made beyond reasonable doubt, in my opinion, that you regarded Nicole Patterson as nothing more than prey to be entrapped and killed. Her life, youth and personal qualities assumed importance in your mind only by reason of the sense of satisfaction and power which you experienced in taking them from her.

For the normal decent members of this community, it is difficult to comprehend that anyone could have acted as you did. There is absolutely nothing in the circumstances which could conceivably be regarded as extenuating in any possible way. You are reasonably intelligent and cannot be described as suffering any mental illness as that term is currently understood. You did not act impulsively or in a state of high emotion, whether engendered by some external incident or otherwise, or whilst you were affected by alcohol or drugs. Rather, you carried out your crime with remorseless deliberation and after careful manipulation of the situation, in full understanding of the significance of your actions. Your level of personal culpability must be regarded, accordingly, as extremely high.

Viewed from the perspective of the community which this Court represent, your offence constitutes a profoundly serious example of the most serious crime known to our society. That degree of seriousness and the unequivocal denunciation of conduct of the kind in which you engaged must be reflected in the response of this Court.

You have breached the most fundamental principle upon which any decent society must be based; the sanctity of the life of each of those who dwell peacefully in it. In so doing, I have no doubt that you have increased significantly the regrettably understandable level of fear experienced, I would suggest, by almost every woman in this society that she may become the victim of sexual violence. The Court in a case such as the present one must, through the sentences that is impose, assert commitment to this principle and make it perfectly clear that such behaviour will not be tolerated. The courts must endeavour to deter those who may be inclined to act in this way.

I have read the victim-impact statements which have been made by a number of the members of the deceased's friends and family, and once again found myself deeply saddened by the complex range of emotions which are experienced by people in their position as they endeavour to come to terms with the enormity of what has happened. It is, I think, the almost inevitable consequence of the commission of such a crime that there will be some who will be so deeply affected that they may never recover. Others will cope one way or another and more or less adequately, but the lives of all who are close to the victim will be irrevocably changed. They too are appropriately designated as victims.

With respect to the victim-impact statements I repeat comments that I made not that long ago in R v. Beckett, unreported, 20 August 1998:

"The introduction of such statements was not, as I see it, intended to effect any change in the sentencing principles which govern the exercise of discretion by a sentencing judge. What such statements do is to introduce in a more specific way factors which a Court would ordinarily have considered in a broader context. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge, who would, of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of very long duration. To that extent, they relate to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence. To that extent, statements of this kind place the crime in a wider and yet paradoxically more specific context to be considered by a judge when imposing sentence. This notion of social rehabilitation to which I have referred is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying object of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. If the balancing of values represented by the system is perceived as just, the process of recovery will be assisted. If not, there will be created within the minds of those directly affected by the crime, and the wider community generally, a sense of injustice and hurt and of the failure of the system that may never be removed."

At a fundamental level, as human beings, you present for us the awful, threatening and unanswerable question - how did you come to be as you are?

Accordingly, I now turn to your personal background.

I note that you have an appalling criminality history, involving repeated acts of sexual violence and which extends over approximately 30 years. I do not think that I need set out the detail of the various crimes which you have committed in these remarks. It is sufficient for present purposes, I think, to state that you have admitted 16 prior convictions involving 6 court appearances, between 27 March 1972 and 11 November 1994.

However, I will append the presentment on which they are set out, and the sentencing remarks of three of the four County Court judges before whom you appeared, to the written version of these remarks. Unfortunately, although extensive searches have been made, I have been unable to locate the remarks of Judge Lazarus who dealt with you in 1980.

All of the offences were sexually related or motivated. A number of them involved physical violence and use of a knife. On three separate appearances you were sentenced to terms of imprisonment for the commission of rape, aggravated rape or assault with intent to rape. On the second and third of those occasions, you committed your offences within a very short time of your release from custody. It appears that the only periods during which you were at large in the community without committing offences were two periods of approximately 12 months each during which you were subject to strict parole conditions following your release from prison in 1992 and 1996. However, it was not long after that form of control was lifted by the expiration of the sentence to which it was related that you reverted to your usual type of criminal behaviour.

I suspect that these periods simply reflect an ability to exercise a considerable degree of control over your underlying impulses which were then released when you considered that it was safe to do so and they emphasize your resistance to any rehabilitation endeavour.

I have considered the substantial amount of material which was provided to the Court in anticipation of the possibility that an attempt might be made to introduce evidence of propensity in the trial. Although it was subsequently not considered to be necessary by the prosecutor to proceed on that basis, the various statements, transcripts and reports present a clear and elaborate history of your background and personality.

You were born on 6 July 1953. You were the youngest of three children born into what appears to have been a fairly normal family. The suggestion was advanced by Mr Brustman in the course of presenting a plea on your behalf that the family environment may not have been as unproblematic as it appears from the various reports in the material. However, he did not contend there was anything in that environment that could provide a plausible explanation for your early development of significant personality problems. You attended high school and left at the age of 17 years after completing Form 5. You later obtained your HSC whilst in custody. It is apparent that you are intelligent and there has never been any suggestion, as I understand the situation, that you have been the victim of neglect or abuse.

The genesis of your impulse to attack and sexually assault females can only be the subject of speculation, but it was recognized at a quite early stage. There are constant references to the danger which you pose to potential victims in the documents. Dr Bartholomew, a recognized expert in the area, reported, for example, in 1974:

"I am reasonably certain that this youth has a serious psycho-sexual problem, that he is using the technique of denial as a coping device and this he is to be seen as potentially dangerous."

That potential has been repeatedly demonstrated over the years.

You are now 47 years with a deeply entrenched desire to engage in sexually violent behaviour. In this context, I have referred to your criminal history, but I note that the member of the counsel who represented you in the County Court in 1974 informed the sentencing judge of an incident in 1968 when you would have been only 14 years of age and in which you attacked and wounded a female neighbour with a knife. I understand that you appeared before the Children's Court in relation to that matter and were placed on probation for a period of 18 months.

Whether or not the situation may have been different had there been available at that time the early intervention programs which are now conducted must remain a matter of idle conjecture. In any event, the position with which I am confronted is patently clear. You have committed an horrendous crime in circumstances meriting the imposition of a sentence of imprisonment for life.

There is absolutely nothing in the material before the Court to suggest that the serious risk which you pose would diminish other than perhaps as a consequence of physical infirmity associated with age. Setting to one side, your categorization under the law as a serious sexual offender and the obligation imposed by legislation to regard the protection of the public as the paramount sentencing consideration in your situation, commonsense would dictate that this must be the case.

You have not responded in anything remotely approaching an appropriate fashion to sentences of imprisonment, psychiatric treatment or community supervision. Realistically considered, the prospects of your eventual rehabilitation must be regarded as so close to hopeless that they can be effectively discounted. There is no indication whatever that you have experienced any sense of remorse for what you have done, and I doubt that you are capable of any such human response.

I have had regard to the sentences which have been imposed by the Court over recent years upon persons who have committed the crime of murder in circumstances of sexually motivated violence.

I have considered the judgment of the Court of Criminal Appeal in R v. Denyer [1995] VicRp 12; [1995] 1 V.R. 186 and those of the Court of Appeal in R v. Coulston [1977] 2 V.R. 446 and R v. Lowe [1977] 2 V.R. 465 which were all cases in which no minimum term was fixed by the sentencing judge.

When regard is had to the seriousness of the crime which you committed and the other sentencing considerations to which I have adverted, including your high level of culpability, the nature of the offence which you committed, the need to protect the community from the risk that you will continue to present for the foreseeable future, the total lack of remorse and the absence of any significant prospect of rehabilitation, only one course can sensibly be seen to remain. You must as a consequence of the commission of the terrible crime which has brought you before this Court be removed permanently from the society upon whose female members you have preyed for over 30 years. I do not consider that it would be appropriate to fix a minimum term in your case.

The sentence of the Court is that you be imprisoned for the rest of your natural life and without the opportunity for release on parole.

I declare that the period of 489 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the Court.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the Magistrates' Court at Oakleigh on the 27th day of March, 1972 of

and was sentenced to pay a fine of $50 in default to be imprisoned for a period of 14 days.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the Magistrates' Court at Dromana on the 2nd day of April, 1974 of

Behaving in an offensive manner in a public place

and was sentenced to pay a fine of $100 in default to be imprisoned for a period of 20 days on the 1st charge, the matter having been found proven the charge was adjourned to a date not exceeding one month on the 2nd charge.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the County Court at Melbourne on the 1st day of July, 1974 of

and was sentenced to be imprisoned for a period of 9 years in relation to the first count and was sentenced to be imprisoned for a period of 6 months in relation to each of counts 2 and 3 such sentences to be served concurrently with each other and concurrently with the sentence imposed in relation to the first count making a total effective sentence of 9 years and he was ordered to serve a minimum of 5 years before being eligible for parole.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the County Court at Melbourne on the 2nd day of June, 1980 of

and was sentenced to be imprisoned for a period of 5 years in relation to the first count, sentenced to be imprisoned for a period of 4 years in relation to the second count, with 3½ years of such sentence to be served concurrently with the sentence imposed on the first count and was sentenced to be imprisoned for a period of 3 years in relation to each of counts 3 and 4 with 2½ years of such sentences to be served concurrently with each other and concurrently with the sentence imposed in relation to the first count and was sentenced to be imprisoned for a period of 3 years in relation to the fifth count such sentence to be served concurrently with the sentence imposed on the first count and was sentenced to be imprisoned for a period of 2 years in relation to the sixth count such sentence to be served concurrently with the sentence imposed on the first count and was sentenced to be imprisoned for a period of 12 months in relation to the seventh count such sentence to be served concurrently with the sentence imposed on the first count making a total effective sentence of 6½ years and he was ordered to serve a minimum of 5 years before being eligible for parole.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the County Court at Melbourne on the 3rd day of June, 1985 of

Indecent assault with aggravating circumstances

and was sentenced to be imprisoned for a period of 12 years in relation to the first count, sentenced to be imprisoned for a period of 6 years in relation to the second count such sentence to be served concurrently with the sentence imposed on the first count and was ordered to serve a minimum of 10 years before being eligible for parole.

COUNT - And the Director of Public Prosecutions further presents that the said

Was previously convicted at the County Court at Bendigo on the 21st day of November, 1994 of

and was sentenced to be imprisoned for a period of 3 years and 9 months and he was ordered to serve a minimum of 2 years and 9 months before being eligible for parole.

1. Peter Norris Dupas, you were found guilty at your trial on one count of rape, one count of housebreaking and stealing, and one count of housebreaking with intent to commit a felony. Leaving aside the so-called pack rapes, this was one of the worst rapes that could be imagined. You raped a young married woman who was previously unknown to you in her own home and on her own bed. You invaded the sanctity of her home by a false story about your car having broken down, relying upon her willingness to help in order to gain admission. You threatened her with a knife, you tied her up with cord, you struck her when she tried to resist, and, worst of all, you threatened to harm her baby when she tried to resist. This was no sudden impulse, because you must have left home that morning armed with a knife and provided with the cord to bind your victim. One prior conviction was alleged. In 1972 you were convicted of being found on premises without lawful excuse; that offence had apparently some sexual background to it. But your counsel properly disclosed an incident in 1969 in which you attacked and wounded a woman, living next door, with a knife. This was not a prior. It could not be alleged as a prior, because of an hiatus in the legislation, which has previously been pointed out by the Courts, and so I do not take it as a prior conviction, that is to say, as a matter which might add to the appropriate length of the sentence, but I must have regard to it in considering whether you are a potential danger to the community. As a consequence of this incident in 1968, you were admitted to Larundel Hospital in October of that year, but after a series of examinations you were discharged next day and attended thereafter as an out-patient. I have been given a report prepared soon after by a consultant psychiatrist, Ms Julie Jones. She considered that on that occasion you lost normal control when pent-up feelings of sexual needs and aggression overwhelmed you. This is in contrast to some extent to the crime for which you now stand for sentence, because, as I have pointed out, you set out from home prepared for what you eventually did. In view of this history I have obtained pre-sentence and psychiatric reports. Dr. Bartholomew conducted a very thorough investigation, but found it difficult to make any definite diagnostic statement in the absence of any admissions by you. He is reasonably certain that you have a serious psycho-sexual problem and you are to be seen as potentially dangerous. The problem of potential danger to the community is also adverted to in the report of a psychologist who tested you. A fortnight after the rape you entered the homes of two women in a different suburb, using the same false pretence as you used at Mitcham. In one house you stole some money; in the other you did not commit a further crime; but the jury has found you entered with intent to commit a felony, but in that case the woman told you she was expecting her husband home shortly, which may explain why you went no further. These further matters are additional reasons why I am unable to accept that the rape was committed in sudden impulse. All these offences would seem to have been premeditated. Moreover, whilst accepting that you are psychologically disturbed, I believe you were fully responsible for your actions. The attempt after the rape to establish a partial alibi helps to establish this. In view of the potential danger to the community which you present, there is obviously no alternative but to sentence you to a term of imprisonment. In determining what the length of that sentence should be, I have regard not only to the seriousness of the offences, but also to your youth, your background, the reports I have received, the evidence of the witness who was called on your behalf, and several references which were submitted. On the count of rape you are sentenced to be imprisoned for nine years, and on each of the breaking counts to six months' imprisonment, cumulative upon each other, but each concurrent with the sentence on the first. That makes a total of nine years, and I fix five years as the term to be served before you become eligible for parole. Remove the prisoner.

1. Peter Norris Dupas you have pleaded guilty to one count of indecent assault with aggravating circumstances and one count of rape with aggravating circumstances.

2. The evidence in relation to these offences is that you went in your motor car to the beach in the vicinity of Blairgowrie, got out of the car, taking with you a knife, with the intention of using that knife - should the opportunity present itself - to frighten a female so that you could have intercourse with her.

3. You went down on to the beach and this girl, Margaret Bathman was there and you followed her round for some time and then, coming behind her, you forced your arm across her throat and forced her down to the ground, threatened her with the knife, and took her bathing costume off and raped her against her will and without her consent. It must have been a horrifying experience for her.

4. I do not go into those details just for the record, because, on the evidence which I have had before me this morning there seems to be a very good chance - if you were at large again - that some other girl might suffer in the same way.

5. You have admitted prior convictions and these are of immediate concern to me. Apart from some minor matters dealt with in the Magistrates' Court, which apparently were sexually related, you were convicted in July of 1974 of rape and with other offences related to the rape, and were sentenced to a total of nine years' imprisonment with a minimum of five years before becoming eligible for parole.

6. In June of 1980 you were convicted, amongst other offences, of indecent assault, rape and assault with intent to rape, and that was the occasion upon which Dr. Myers gave evidence. You were sentenced then, with concurrencies, to a total period of six and a half years with a minimum of five years before becoming eligible for parole. In other words, in view of the sentence imposed on the earlier offence of rape, it becomes clear that Judge Lazarus accepted what Dr. Myers then told him and imposed what, on the face of it, appeared to be a light sentence, for the purposes of seeing whether you could be rehabilitated and could be allowed at large in the community.

7. That attempt failed miserably because, I am told, it was within a month of your release upon parole that you committed these present offences. One cannot help by being struck with the fact that if the sentence which appeared to be appropriate - leaving aside the question of rehabilitation - had been imposed, this girl would not have suffered as she did.

8. Now, the question is what can I do? I have got that dreadful example of what did happen in front of me. Dr. Myers puts it that, without specific treatment, there is a strong probability of your re-offending, that the recidivism rate in cases of your type is between 80% and 90% or even higher and he acceded to counsel's expression that "You carried a loaded time bomb in your pocket".

9. Consequently, I think, the question of releasing you at this stage is not to be considered. The community, I am sure would be both outraged and apprehensive if that were to be done. But what is suggested is that a further attempt upon your subsequent release should be made to give you the appropriate treatment including the medication of Depo Provera if no other drug is then considered effective, with of course no guarantee that even that would be effective.

10. The situation is that I am not empowered to prescribe conditions of parole when you are eventually released. So I have no guarantee - even in any order that I could make - that you would receive that treatment.

11. I accept readily that you feel remorse and that you endeavour to overcome this enormous urge which you must have. But quite simply, I am not prepared to run the risk of some other girl being attacked by you in the same fashion.

12. I think the only course open to me, because I am of the opinion that a custodial sentence is the only course open having considered all the other alternatives, I think I can only impose what I regard as the appropriate sentence for the offence, and apply that in contemplation of the earlier offences because not only are these offences accompanied by aggravating circumstances - that you carried a knife with you an offensive weapon - but because of the prior convictions, there are six other grounds upon which each of these offences is accompanied by aggravated circumstances, in accordance with the provisions of the Crimes Act. One must have sympathy for you but the community must also be protected.

13. On the first count of indecent assault with aggravating circumstances you are sentenced to be imprisoned for six years. On the second count of rape with aggravating circumstances you are sentenced to be imprisoned for twelve years. The two offences were really one, a rolled up matter, and consequently I make those two sentences concurrent, making a total of twelve years. I fix ten years as the minimum term to be served before you become eligible for parole.

You have pleaded guilty to one count of false imprisonment which occurred on 3 January of this year. On that day a lady aged about 26 years was picnicking at Lake Eppalock. At about 11.30 a.m. she left her friends and walked some 150 metres to a public toilet block, she entered a cubicle and removed her shorts and sat there. As she was getting up, you entered the cubicle, forcing the door open and wielding a knife. You were wearing a hood with eye-holes and holding the knife towards her face. She attempted to fend off the knife and suffered lacerations to her left hand. You kept telling her to turn around and you were trying to force her to turn around and face the rear, but she resisted this. You took her arm and led her out of the cubicle and at the exit of the toilet block, unexpectedly let her go and told her to go off.

You then entered your own car and drove away. She alerted her friends who chased you in their car, caught you and restrained you until the police arrived.

In your pockets you had a roll of insulation tape and a pair of metal handcuffs. She would not have known this at the time but no doubt had learned of these items subsequently and they would have no doubt confirmed her worst fears that she was to be raped and perhaps otherwise injured or even worse. Her statement indicates that this was her state of mind during her detention and it was a very reasonable view to hold in the circumstances.

As can only be expected, this experience has had a terrible, immediate and lasting effect on her. Apart from her physical lacerations, she suffered emotional and psychological detriments which persist. She required constant counselling for some two months and suffered nightmares, re-enacting the events which, fortunately, are reducing in frequency. She has required sedatives for sleeping and the need for these is again, fortunately tapering off and she has continuing fears of certain places and circumstances. Hopefully these problems will reduce or even abate with time but there is no way of knowing with confidence. She may suffer from these troubles for years or even for her life and her situation may deteriorate.

Learning of your prior convictions which I have no doubt she has, will have been yet another factor confirming her original fear and perhaps compounding it.

Mr. Dupas, your prior convictions and criminal history are breathtaking.

On 1 July 1974 you were convicted of rape and associated offences and sentenced to be imprisoned for a period of nine years with a minimum of five years. You were released on parole on 4 September 1979.

Very shortly after your release you offended again in a similar manner and on 2 June 1980 you were convicted again of rape and associated offences and violence was involved. You were sentenced to be imprisoned for a period of six and a half years with a minimum of five years.

You were released on 27 February 1985 and again very shortly after release, offended in yet the same way. On 3 June 1985 you were convicted of aggravated rape and sentenced to imprisonment for a period of twelve years with a minimum of ten.

From this sentence you were paroled in March of 1992. In this instance and uncharacteristically, there was a gap of almost two years to this offence. This offence is not a sexual offence nor a violent offence nor a serious violent offence as those terms are defined and you are not subject, in this case, to the penalties introduced by the Sentencing (Amendment) Act 1993 although you will clearly be found to be a serious sexual offender, as defined, should you ever be convicted of a sexual offence or a violent offence in the future.

Whilst your motivation for this offence is a matter proper for me to consider in assessing your moral culpability and I infer that your motive was to commit an offence of a sexual nature, I remind myself that no matter what the victim might have thought your purpose was, nor what I might think your purpose was, the offence cannot be elevated or altered thereby to an offence other than what it is and I must sentence you for the offence of false imprisonment and for nothing else.

That offence, especially in the following circumstances, is nonetheless a serious and significant offence, high on the scale of gravity of such offences. It was not spontaneous, it was planned and you must have been watching and waiting nearby. Steps were taken to conceal your identity, a weapon was used and other equipment was at hand, if required. It was an offence carried out on a single, by that I mean a lone defenceless woman in degrading circumstances in the seclusion of an isolated toilet block when she was separated from her friends and at your mercy. It was calculated to and did engender terror into her mind. It involved a physical assault and the likely consequence of using a knife eventuated. It was a significant affront to her and a serious violation of her rights and self-esteem. What is more, it was carried out by a person with the prior convictions and criminal history that you have.

As was said in Veen (No. 2) [1988] HCA 14; (1988) 33 A.Crim.R. 230 at pp.238-9:

"The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences, see the DPP and Ottowell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender or other offenders from committing further offences of a like kind."

2. Deterrence, both special and general looms large as a sentencing consideration in this matter, but again I remind myself that you are not subject to the provisions of the Sentencing (Amendment) Act 1993 and that I must punish you only for the offence charged and not for what I think you were going to do, but did not.

3. The only matters that I can think of which tend, to some extent, to mitigate the gravity of the offence and your criminality are that it was mercifully short. That is, the detention was over in minutes, although I am sure it seemed a much longer period for the girl and that you released her voluntarily and not because you were disturbed or prevented from continuing. I do not know why you did this but it is an important matter in your favour, indeed, a very important matter.

4. By ceasing when you did, although you had already offended as I have outlined, you spared the girl the terrible fate you originally intended and which she expected and you acted in such a manner as to give rise to at least the hope and perhaps the prospect that realisation of the significance of what you are about to do activated your conscience in such a way as had not happened on the occasions of your previous offences. I cannot, therefore, preclude the possibility of rehabilitation notwithstanding that your history suggests otherwise.

5. You are aged 41 years, you have come from a good family. You were a poor student, leaving school at Form 5. You then completed an apprenticeship but soon thereafter at age 21, received the first prison term that I have spoken of.

6. Whilst serving your last prison term, you married and, on release, lived with your wife happily until about six months before this offence. You completed your parole but did express fears to your Parole Officers that upon completion, you would be left without the supervision and assistance you needed and here, again, is perhaps a glimmer of conscience shining through.

7. Whilst you have been in custody awaiting trial you have twice attempted suicide and you had made similar attempts in 1985 and 1986. I wrote this at the time when I originally prepared my reasons, at that stage you were currently prescribed anti-depressant tablets.

8. Any time you spend in prison will no doubt be "done hard", as they say, because of the nature of the offences and because of the prison culture.

9. You pleaded guilty to this offence at an earlyish time and thereby spared the victim the trauma of a trial and I take into account that plea in reduction of what might otherwise have been the appropriate sentence and the plea, is again, consistent with the hints of conscience that I have referred to.

10. I bear in mind s.10 of the Sentencing Act and the need to scale down, as it were, the appropriate sentences to take account of the abolition of remissions. I have sought to find some points of reference or guides from decided cases as to the proper sentence in this case. The nearest I can find is the case of Lakeland (unreported) 19 November 1993 referred to by counsel. There are, of course, many differences between your case and that of Lakeland. For example, the period of imprisonment in Lakeland was much longer. Lakeland went on to commit a number of sexual offences on his victim. He did not plead guilty and in any event I do not know the details of his prior convictions. Nonetheless, that case has been of some assistance in my sentencing task as has been the case of Rizzo & Ors. 21 June 1994 to some extent.

11. Mr. Dupas, I sentence you to be imprisoned for a period of three years and nine months. I fix a non-parole period of two years and nine months and, although I am not clear whether there is any balance owing, as it were, to the Parole Board, but so that there is no doubt about it, I order that the sentence be served cumulatively upon the balance, if any, of any sentence ordered to be served by the Adult Parole Board.

12. I declare pursuant to s.18 that the period of 323 days be reckoned as already served pursuant to this sentence and I will cause the records of the court to be endorsed accordingly.

(Amendment) Act 1993

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Parties

Legislation Cited (1)