IN THE COUNTY COURT OF VICTORIA
Revised
Redacted
AT MELBOURNE
CRIMINAL DIVISION
Case No: CR-13-00498
DIRECTOR OF PUBLIC PROSECUTIONS
v
MICHAEL ALLEN PILGRIM
--JUDGE:
JUDGE TINNEY
WHERE HELD:
Melbourne
DATE OF HEARING:
15 August 2013
DATE OF SENTENCE:
27 August 2013
CASE MAY BE CITED AS:
DPP v Pilgrim
MEDIUM NEUTRAL CITATION: [2013] VCC
REASONS FOR SENTENCE
---
--APPEARANCES:
Counsel
Solicitors
For the DPP
Mr B Sonnet
Ms K Maikousis
For the Accused
Mr G Hughan
Mr S Moodie
!Und efined Boo km ar k, I
HIS HONOUR:
1
Michael Allen Pilgrim, you have pleaded guilty to one charge of theft, one
charge of stalking, one charge of false imprisonment, one charge of
possession of explosives, one charge of aggravated burglary, one charge of
intentionally causing injury, one charge of abduction, four charges of rape and
one charge of possession of child pornography.
Charge 1 is a rolled up
charge of theft pertaining as it does to three stolen vehicles, charge 2 is a
continuing offence of stalking over a period of some 13 months and charge 8
is a charge of rape but one laid on a representative basis as paragraph 5 of
the opening makes clear. You have admitted one Court appearance of which
I will have more to say.
2
The offence maximum penalties are correctly set out in the opening and I see
no need to restate them.
3
The details of your offending are set out in Exhibit A which is the summary of
prosecution opening dated 12 August of 2013. That is for all intents and
purposes an agreed statement so I really do not intend to fully recite the facts,
in these reasons. I say for all intents and purpose. The transcript will record
the handful of issues raised by Mr Hughan in relation to the opening. On
some occasions it was by way of clarification. For instance lest paragraph 2
convey some great success achieved by you as an aeronautical engineer, Mr
Hughan made plain that this was not the reality.
Further, though false
identities were undoubtedly employed in this offending, your counsel
emphasised that you had lived your life with false identities well before the
planning and commission dates of these crimes. He clarified that in relation to
paragraph 10, as to contact being made, it was (your victim) who contacted
you in around November 2011. As to the extent of time (she) was held in the
purpose built “soundproofed” zone, your instructions were that it was for about
10 or maybe 15 minutes but her impression was of a longer period and you
did not quibble ultimately with it being on one occasion for something
1
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DPP v. Pilgrim
approaching one hour.
4
Your counsel took me to the various issues and in some instances referred to
a seeming disparity between the depositional material and the actual account
in the written opening. He did not suggest that any of the matters raised were
of any great significance but I make clear that I sentence on the basis of an
acceptance of those matters which he did raise. Your counsel conceded that
for the most part the summary was an agreed one. Well that lengthy opening
has been read in open Court on the day of the plea. It runs for over 30 pages
and I really see no useful purpose in my repeating it in these reasons this
morning. What I will do is incorporate that written summary, that is Exhibit A,
into these my reasons for sentence.
5
It is sufficient if I say at this early stage in my reasons that your offending was
offending of a very high level of seriousness indeed.
You committed a
number of inherently serious crimes against your victim. Having committed an
aggravated burglary upon premises that you had tracked her to, having
tasered and struck the unfortunate (man) who came to the door of his home,
you then abducted (the victim) intending to sexually penetrate her. You then
raped her a number of times over the following days not hours and the context
of the rapes was of her being held in an isolated rural property and chained to
an eye bolt on the floor. She thought she was going to die and the materials
disclose really a quite incredible level of planning and preparation for many of
these crimes. It is quite chilling to comprehend.
6
For instance the search by you for suitably isolated properties. Ultimately you
obtained a rental in a false name, that is of a suitably isolated country
property. One that suited your purposes. You then constructed within that
premises, within a room, a soundproof area with an eye bolt screwed into the
floor of that area and another in one of the other rooms. Their purpose: to
restrain your victim. The soundproofing, to silence her. I do not see much
need to list now the other indications of preplanning.
2
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7
The opening read into the transcript by Mr Sonnet is replete with them
including of course the tracking of your victim's movements months out from
the point of your abduction and the obtaining of weapons, disguises and
chemicals.
The fact is that parallel lives were being led but with no
relationship between the two lives. Your victim on the one hand, blissfully and
totally unaware of your warped thought processes, of your infatuations and
your designs, she was simply going about the business of living her life.
8
You on the other hand dedicated months of your life to preparing to abduct
her. Once you abducted her on the 5th July, in speaking to her during her
ordeal you raised matters that caused her fear and a sense of despair as to
her predicament or position.
You mentioned that you felt like carving
somebody up and your desire to go on a rampage and to have a shootout with
police. You told her that you planned to keep her there and to use her and
you mentioned the tracker that you had installed on her younger sister’s
vehicle.
9
A number of other comments were made which heightened her fear of you
and her concern as to her predicament. (She) feared for her own life and that
of her sister's. It was not surprising that she thought she would not survive
this ordeal. These were incredible crimes which you committed.
Victim Impact.
10
What do I really need to say as to the impact of crimes such as these? To
anyone other than you listening to the summary there could be no doubt as to
the foreseeable and likely deep impact of these crimes upon the immediate
victim and her loved ones. These crimes are the sort where any reasonable
minded observer listening to that opening, if asked, could probably draft a
statement of the likely impacts of crimes such as these and not go too far
astray. Your attitude at least as of June this year was that “it looks a lot worse
than it is.” Well It doesn’t, Mr Pilgrim.
3
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11
Three victim impact statements were filed on the plea and marked as exhibit
B. An identified portion of (her) statement dealing with physical impacts is not
relied upon by the prosecution so I put that portion aside altogether. I have
read those statements since the day of the plea. Ordinarily in my reasons for
sentence, I would go into much greater detail as to the impact of the crimes
and I would undoubtedly quote material from those victim impact statements.
Here, as I understand it, the primary victim would prefer the court not to do so.
So I won’t. It is sufficient if I say your crimes have had a deep impact on
every aspect of her life. She and her family have been deeply and profoundly
affected. Her life will never be the same. I take into account the impact of
your crimes. It has been profound.
Mitigation
12
Mr Hughan, who conducted the plea on your behalf is, if I might say so, an
excellent and realistic practitioner, not one prone to overstatement or
worthless rhetoric.
He raised on your behalf what could be raised in
mitigation. There was in truth not a great deal that could be said. He relied
primarily upon your early guilty plea and the facilitation of justice achieved by
that stance. He conceded the very significant impact of the offending but
pointed to your very limited history, your age and background and argued that
you had at least some prospects of rehabilitation saying that those prospects
were not non-existent. He argued that you had faced in the past, and would
continue to face for a period in the future a period in protective custody, with a
slight increase in your custodial burden.
13
He dealt with the claimed motivation of the offending and emphasised that you
did at least ultimately release your victim. He relied upon two reports one
from a psychiatrist Dr Carroll, one from a psychologist, Ms Lechner.
He
conceded that the offending was very serious indeed and deserving of a very
substantial term of imprisonment but argued that the Court ought not pass a
crushing disposition upon you.
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Prosecution
14
Mr Sonnet on behalf of the Director of Public Prosecutions submitted that this
was very serious offending.
There were many factors, he argued, which
heightened its seriousness and he relied upon some written sentencing
submissions which were marked as Exhibit D.
15
Those submissions were uncontentious and your counsel did not quibble with
the submissions, or any of the aggravating features spelt out in the
Prosecution sentencing document. When asked for a sentencing range, Mr
Sonnet on behalf of the Director of Public Prosecutions of this State, provided
a range of between 19 to 22 years with a non-parole period of between 16 to
18 years.
Your counsel argued against that range submitting that an
appropriate range would fall between 15 to 16 years with a non-parole period
of between 11 to 12 years. Well these were each submissions of counsel.
They were submissions no doubt designed to assist the Court and whilst of
course I pay regard to any submissions or arguments advanced by counsel,
no submissions or arguments are binding upon the Court. I must ultimately
exercise my own sentencing discretion in this case.
Background
16
Your counsel really did not dwell on your personal background at all on the
plea. He relied upon the background as was spelt out in two reports that I
have mentioned and again I do not see any useful need to recite your
personal background in any great detail in these reasons. That is because I
accept the family and the personal background that has been placed before
me.
17
Briefly though, you are 34 years of age. Your childhood and early life was
quite unremarkable. You clearly come from a good family. You have had
good schooling. All the outward signs really of success. You are one of four
children with one older and two younger sisters. There is nothing in your
5
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DPP v. Pilgrim
personal background to in anyway hint at this outcome. It is true that you had
it would seem some social isolation existing at school though still succeeded
academically and otherwise.
As I understand the materials you were a
member of the St Kevin’s College rowing firsts.
You went on to tertiary
education graduating with a degree in aeronautical engineering.
18
However, by then it would seem your social isolation which had commenced
at school had become more far more pronounced. School had at least a
structure for you. University and life beyond university had far less structure
and though you passed your degree and went on to employment, your life
was to a degree it would seem unravelling. You have had no real or true
intimate relationships. You have relied upon the services of paid sex workers
and in this way met your victim.
19
Ultimately you distanced yourself from your family and it would seem sailed
out of their lives for some years emerging battered and bruised and worse for
wear from a strange style of life that you led overseas and in this country At
one point imprisoned in France for quite odd offending committed in 2008.
False identities, firearms and weapons offences and child pornography. Your
life had for some reason swerved off course quite dramatically.
20
Jumping ahead, even now as you sit where you sit, you have not permitted
your parents to visit you. Nor your sisters. Whether it is shame felt by you or
a sense of letting them down is unclear to me. What is clear to me though is
whatever your attitude to them, your family still stand by you. They are deeply
shocked by your offending. Your parents have written a most thoughtful and
valuable reference attesting to their support of you and documenting your
descent into a most unusual life apart from them in the years leading up to this
offending. I take that reference, Exhibit 3 into account in mitigation.
21
You have admitted a criminal history or record. That is one appearance in an
overseas Court. It was undoubtedly serious and unusual offending rewarded
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DPP v. Pilgrim
with a substantial term of imprisonment imposed upon you by the French
Court that dealt with you. The conduct suggests that by that point in 2008 you
were well and truly slipping off the rails possessing as you did automatic
pistols, ammunition, a taser, a teargas grenade and other weapons and also
some child pornography. Your counsel told me also of the unusual life you
were leading in Australia when you returned and the creation and use by you
of false identities arising independent of the identities created for the
commission of these offences.
22
Your criminal history is of course of relevant to my task.
23
As I have indicated, your background is set out in far greater detail in the
reports of Dr Carroll (Exhibit 1) and Ms Carla Lechner (Exhibit 2) and I have
read those reports again a number of times since the plea. I take them into
account both generally and also in as much as opinions are offered in terms of
your condition, your motivation for offending and your risks of offending in the
future.
24
There is no suggestion that any of the principles from the case of Verdins v.
The Queen have any application here. That case is one which deals with the
impact upon the sentencing process of various conditions existing either at the
time of the offending or sentence or both. That is a gross simplification of that
case, but it suffices for present purposes. Your counsel who, as I say, is very
experienced was specifically asked and specifically disavowed any reliance
on any of the principles derived from that decision. Nonetheless you personal
background is one that I do take into account in so far as I am able to. Yours
is an odd personality at best (whatever diagnostic tag or label may be applied
to it) and obviously has been instrumental in shaping your strange obsession
or fixation with (the victim) and your attitude to this offending. But so too is it
relevant to making judgments as to the risk that you present now and into the
future.
7
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25
I do not find, nor was it suggested that I could or should find, that your moral
culpability is in any way significantly reduced.
Custodial Burden
26
No suggestion was made as to any increased custodial burden courtesy of
your personality or the conditions commented on in those two reports.
However, your counsel argued that your being in protection which you have
been for some time now and the likely continuation of that status for at least
some time into the future had some very limited mitigatory impact. He argued
that you are limited in the courses that you can do and you are more limited in
terms of access to exercise in such a setting.
Again the tone of these
submissions was a measure of the realistic and sensible way the plea was
conducted. I accept that submission but as your own counsel submitted, it
was not a matter of great weight.
Guilty Plea
27
I accept that your plea of guilty has a strong utilitarian value and that it has
been entered at an early opportunity. I take those matters into account in
mitigation of sentence. It is true that the matter was listed for a contested
committal and settled in the days leading up to that hearing. Of course (the
victim) was a required witness and no doubt she would have had the
unpleasant expectation of being called to testify.
28
However, you were facing numerous charges and the negotiated settlement
proceeded quite swiftly once negotiations commenced. Once it has settled,
you have continued to facilitate the course of justice admitting an overseas
criminal matter that may not have been that easy to actually formally prove
and accepting of the way the matter was opened to the Court and the extent
to which the Court could pay regard to contextual matters that are highlighted
in the summary.
8
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29
The Court must provide an appropriate and significant discount for the fact of
your plea and it being entered at the very early stage that it was. Witnesses
have been spared the experience of having to come to court, either in this
court or the Magistrates' Court. (The victim) in particular has been spared that
experience as a witness.
That is significant.
The community has been
spared the time, the cost and the effort associated with the conduct of a
contested hearing, either in this court or the court below. You have then, in
the various ways identified by your counsel, facilitated the course of justice
and of course I am going to pass a lesser penalty upon you because of that
fact.
Remorse
30
Now your counsel did not suggest that the court could find that you were
remorseful given the findings of Dr Carroll. You have a limited insight into the
impact of your offending. As I remarked earlier, you said to Dr Carroll in June
of this year, “it looks a lot worse than it is”. You had a totally unrealistic
attitude as to the true nature of your relationship with (the victim).
31
You are reported as saying to the psychiatrist that you are still somewhat
surprised as to the victim’s account suggesting that it was non consensual
sexual activity. Unsurprising Dr Carroll pressed you in that regard given the
actual context of the sexual acts. How you could judge such acts as having
any or the hallmarks of consent when (she) was abducted at taserpoint by
you, handcuffed and at one point placed in the boot of the car and bound and
then chained to the floor during the currency of the acts says a lot as to your
lack of insight.
32
You are essentially incapable of fully apprehending the impact of your
behaviour upon others and your main regret is of the loss of any chance of
having a relationship with (the victim). I make plain that I certainly do not find
that you are revelling in the crimes you have committed or exhibiting any
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callous and deliberate disregard for her now.
33
Unfortunately your make up and your lack of insight does not permit you to
feel genuine remorse for these crimes and your counsel accepted that was
the position. Ms Lechner's views in this regard have to be seen in light of
some of the extraordinarily insightless comments that you are reported as
providing to Dr Carroll only one month before your meeting with Ms Lechner.
I am not able to find on the materials that you have any true or genuine sense
of remorse for your crimes. That is of course not a matter in aggravation.
Motivation
34
Your counsel accepts that it is not as simple as finding that you committed
these offences in a misguided way to "win back" (the victim). Your counsel
accepted there were mixed motivations and so too did Dr Carroll and to an
extent Ms Lechner.
It should not be forgotten that there are two quite
separate episodes.
35
In November 2011, (the victim) rang you and contact resumed. It was that
contact which you craved and resumption was available to you and indeed
taken up by you. However, you took it up by committing a serious offence of
false imprisonment and raising the existence of a debt, a non-existent one.
The offence of false imprisonment that occurred in November of 2011
(charge 3 on this indictment) had nothing to do with money. You told her as
much on the evening saying to her that you wanted to hurt her.
36
The later episode in July 2012 and the extraordinary lead up to that offending
unmistakably speaks of an obsession and fixation with her but to do what? To
resume your relationship with her? It was never a true relationship at all. It
never was, to her. Though I accept that there may have been some deep
seated and irrational belief that your conduct might in some way ‘win her
back’, there existed at the same time a clear and present intention to hurt her,
to frighten her and to demean her.
10
Your motivation was complex and
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DPP v. Pilgrim
irrational and dangerous. I do not know, as you set out to commit these
crimes, how you thought they might end. That it ended in the way it did cannot
have been planned as the ending was so much driven by the unforeseeable
medical predicament of your victim which rendered her of less use to you but
happily for you and for her you chose to release her and release her at
hospital.
Rehabilitation and risk of re-offence
37
Your counsel argues that your prosects of rehabilitation are not non existent.
That there are at least some prospects. Well I accept that is so but your lack
of insight at the time and still now as to the seriousness of this offending and
as to the impact upon your victim is deeply disturbing.
As I have said a
moment ago your personality does not permit these judgments to be made
and those deficits held by you are unlikely to be remedied.
38
The psychological and psychiatric material is disturbing in the picture it paints
as to a lack of insight in the actual offending and a lack of empathy for others.
More significantly there is still a void in your abilities to comprehend what you
have done. I certainly prefer the judgment of Dr Carroll in this regard. His
examination of you and his report is in my view far more rigorous than the
report and examination of Ms Lechner.
39
Of course it is notoriously difficult for a court to make judgments now as to
your prospects at some point many years hence and it will be many years
hence. However Dr Carroll states that the likelihood of your offending after
your eventual release must be judged to be significant. That is because your
disabilities in the realms of social understanding and communication, things
that are unlikely to change. Counselling may assist but is unlikely to fix what
are likely to be fixed intrinsic deficits. You were unusually obsessional in
relation to this victim and still are not fixed with any true insight into the
seriousness of your offending.
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40
Further it is abundantly clear from the materials that you were surveilling a
large range of other women that you had no relationship with at all. Whilst
counselling and treatment are unlikely to fix intrinsic deficits Dr Carroll says
they still may assist and it may have some impact in reducing your future risk.
Only time will tell. Of course I note that your ultimate release is going to be
very many years from today’s date.
41
I do accept that you have at least some prospects of rehabilitation but the
combination of your level of intelligence, your lack of insight and empathy and
the intrinsic deficits in social understanding mark you out as presenting a real
danger to the community upon your ultimate release. Presently you are
judged as having a moderate to significant risk of re-offence upon your
eventual release.
Current Sentencing Practices
42
I must take into account current sentencing practices. I do. I have considered
a range of materials in an endeavour to gauge current sentencing practices. I
have considered the various Sentencing Snapshots from the Sentencing
Advisory Council, number 145 (Rape) , number 124 (aggravated burglary) and
number 128 (Intentionally cause injury).
43
I have looked at the various decisions I was referred to as well as recent case
collections set out in the Judicial College Sentencing Manual. Lawyers often
in a plea endeavour to characterise a crime or crimes as falling at a certain
level of seriousness and to in a way grade an offence's seriousness. That
style of submission should not be misunderstood by those who overhear it.
Rape is an inherently serious offence. So is abduction. So is aggravated
burglary. However the individual circumstances of offenders and of crimes are
necessarily varied.
44
I must exercise my sentencing discretion in this case based on all of the
materials that have been placed before me. Mr Sonnet placed before me a
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number of cases of abduction or detention type sexual offending, referred to in
the prosecution submissions. Of course I have read that material and having
done so it is evident that there are many differences. Differences in the acts,
in the duration of offending, in the motivation, in the prior history before the
court, in the level of debasement or humiliation of the victim, in the level of
planning.
No two cases are identical.
I must exercise some caution in
relation to statistics or so called comparable cases. They have a use, but the
Court of Appeal has spoken frequently as to their many limitations. Statistics
provide only limited guidance, and by themselves they do not establish a
sentencing practice and comparable cases also have clear limitations. Here
they provide an example of other highly serious sexual offending and the
sentences imposed in those other cases. But those sentences say very little
about the sentences required in this case.
Gravity
45
The level of deliberation that you engaged in and the seriousness of the actual
criminal acts ranks your offending as grave criminal conduct. As I have said
the rapes were committed in the context of your victim being essentially a
totally powerless and helpless woman, abducted for sexual purposes, isolated
and held in a desolate and hopeless setting. The rapes occurred over days
not minutes. Days. (The victim) was actually physically chained to the floor of
the isolated rural farmhouse whilst you committed the sexual acts upon her.
Yours was offending of a very high order and the premeditation was quite
chilling.
46
The seriousness with which the Parliament views the offence of rape and
aggravated burglary can be determined from the maximum penalty that
applies to such conduct; namely, 25 years' imprisonment, which is the highest
maximum term provided for by the Crimes Act 1958 short of life terms
available for the crime of murder. The maximum is one of the factors that I
must have regard to under the provisions of the Sentencing Act.
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47
The seriousness of the crime of rape has been spoken of repeatedly in
decisions of our Court of Appeal including DPP v Avci (2008) 21 VR 310 and
DPP v FHS [2006] VSCA 120.
48
Rape is clearly enough a serious criminal offence however it is committed.
I am required to consider the nature and gravity of your crimes of rape and, as
I have said, I find the rapes you committed to be each extremely serious
examples of that crime given the context and extent of premeditation engaged
in. So too is the aggravated burglary in my judgment a serious example of a
serious offence.
Weapons at the ready, a highly pre-planned entry with
immediate use of the taser and the imitation weapon to strike and injure the
unfortunate male who opened his door. You then abducted your victim. The
abduction was a terrifying event and not a momentary one. None of this is to
downplay the seriousness of the earlier theft, highly planned acts against the
owners of the property or the seriousness of the stalking or earlier charge of
false imprisonment that occurred in November the year before.
49
I have taken into account all of the submissions made by your counsel as well
as the exhibits placed before me in the course of the plea by your counsel and
indeed by the prosecution. This includes the bundle of certificates of courses
that you have completed whilst in prison, marked as Defence exhibit 4 and I
take those matters into account as well.
50
Sentencing is a relatively complicated task.
There are a large number of
matters which a court must take into account. As I have said I have to take
into account the maximum penalty. Here for five of your crimes, it is 25 years.
I must pay regard to current sentencing practices. I have to pay regard to the
impact of your crime. There are a host of other matters that the court must
have regard to.
51
Of course your rehabilitative prospects are relevant but they are not strong
and in any event, they must take to a degree, a back seat to other sentencing
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purposes, given the gravity of your crimes.
Your risk of re-offence upon
release is quite tangible, judged at least currently as being moderate to
significant.
I must punish you for your crimes but do so justly and
proportionately. I must denounce your conduct. It was appalling conduct
committed upon a totally innocent victim. You must also be deterred. You
must be dissuaded from ever committing crimes such as these again. That
must be given some real weight here. The Court must also seek to deter or to
dissuade others in the community who might be minded to commit this style of
offending. That is a significant purpose of sentencing in a case such as this.
52
The protection of the community is also a significant sentencing purpose in a
case such as this even before considering the Serious Offender provisions in
the Sentencing Act which elevate that purpose to the principal purpose of
sentencing for offences covered by those provisions. Of course it is not the
only purpose of sentencing.
53
I clearly must pay regard to the gravity of the offences before the court.
was on any view of it grave offending.
spontaneous offending.
It
This was not disorganised or
There was extreme level of premeditation and
meticulous planning.
Serious offender
54
You stand to be sentenced as a serious sexual offender in relation to charge 8
through to 12. Under the serious sexual offender legislation attached to the
Sentencing Act, unless I otherwise direct, the sentences passed upon you on
those charges would be served cumulatively upon the other sentences
imposed and upon each other. (See s6E of the Sentencing Act 1991). As I
have said, in relation to those matters where you stand to be sentenced as a
serious sexual offender, I must regard the protection of the community as the
principal sentencing purpose. I can impose a disproportionate sentence to
achieve that purpose but make clear that I do not do so here in relation to any
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of the sentences.
55
I must give weight to this statutory modification (see DPP v HPW). This rule
as to cumulation has an evident object and one that is not to be defeated
merely by the court’s exercise of the discretion to direct otherwise. Such a
course as that would compromise and undermine what is a clear legislative
policy.
The provision gives effect to a legislative will that serious offenders
are in a special category of offenders (see Beyer v R [2011] VSCA 15 and R v
RHMcl [2000] 203 CLR 452.
56
So, I must give weight to this provision (s6E) and the nature of your offending
but it is clear that I still must pay regard to the principles of totality as modified
by this rule. I have given consideration to the overall effect of the sentences
imposed by me and to the orders that produce a measure of concurrency that
are shortly to be pronounced. I have engaged in a last look at the overall
effect of these sentences in endeavouring to avoid the imposition of a
sentence that might be described as crushing upon you and to ensure that the
overall effect is consistent with your overall criminality.
.
Sentence
57
Yes, Mr Pilgrim, would you stand up please. Mr Sonnet and Mr Hughan, I will
hand down, I have been in your situation some time ago and it is difficult to
keep track of the various sentences and cumulation and concurrency orders
so I will hand down for your purposes a typed script.
58
COUNSEL: Thank you, Your Honour.
59
HIS HONOUR: I now move to pronounce sentence upon you for the serious
crimes you have committed. Crimes that I have no doubt will be remembered
by your victim for as long as she lives.
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60
On the charge of Theft, charge 1, I convict and sentence you to 2 years
imprisonment.
61
On charge 2, a between dates stalking of your victim, you are convicted and
sentenced to 2½ years imprisonment.
62
On charge 3 false imprisonment, I convict and sentence you to 3 years
imprisonment
63
On charge 4 possession of explosive substances I convict and sentence you
to 9 months imprisonment
64
On charge 5 aggravated burglary, you are convicted and sentenced to 6½
years imprisonment
65
On charge 6 intentionally causing injury I convict and sentence you to 2½
years imprisonment.
66
On charge 7 abduction I convict and sentence you to 5 years imprisonment
67
On charge 8 a representative charge of rape and the first of the offences for
which you stand to be sentenced as a serious sexual offender, I convict and
sentence you to 10 years imprisonment.
68
69
This is the base sentence.
So too do I sentence you to individual terms of 10 years imprisonment on
each of the other charges of rape, being charges 9, 10 and 11.
70
Finally on charge 12, possession of child pornography, you are convicted and
sentenced to 6 months imprisonment.
71
As I said in the course of the plea, ordinary principles of sentencing would
have required a measure of cumulation as between a number of the different
sentences imposed.
The thefts though in part linked to the planned
commission of later crimes occurred in a different time frame and were
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committed against quite separate victims. The stalking was for a significant
period of time.
The false imprisonment the subject of charge 3 was
disconnected at least in point of time from the later serious offending in July
2012 and was itself serious criminal activity.
72
As to the events in July 2012, well there were a number of crimes with quite
separate elements and each no doubt having a role to play in the serious
impacts suffered by your victim. Each rape involved a further serious violation
of your victim and they were committed on different days. In this case of
course, quite aside from ordinary sentencing principles, there are the serious
offender provisions in particular section 6E of the Sentencing Act with a
presumption as to cumulation at least for those matters that you stand to be
sentenced for as a serious offender, unless I otherwise order concurrency.
CUMULATION
73
I make the following orders. Firstly, orders as to cumulation.
The base
sentence as I have said is the 10 year sentence imposed on charge 8.
74
I direct that 6 months of the sentence imposed on charge 1, 6 months of the
sentence imposed on charge 2, 9 months of the sentence imposed on charge
3, 3 months of the sentence imposed on charge 4, 18 months of the sentence
imposed on charge 5, 12 months of the sentence imposed on charge 6 and
18 months of the sentence imposed on charge 7 be served cumulatively upon
the base sentence imposed on charge 8. To that point , a term of 16 years is
produced.
Extent of concurrency for Serious Offender sentences
75
As to the sentences imposed from charge 9, It is more appropriate that I follow
the statutory scheme in the Sentencing Act and pronounce instead the extent
of concurrency in line with section 6E. I direct that 7½ years of the sentence
imposed on charge 9 be served concurrently with the other sentences
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DPP v. Pilgrim
imposed.
76
I order that 7½
years of the sentence imposed on charge 10 be served
concurrently with the other sentences imposed.
77
On charge 11, I order that 7½ years of that sentence be served concurrently
with the other sentences imposed.
78
On charge 12 I order that the entirety of that sentence be served concurrently
with the other sentences imposed.
Total effective sentence
79
In this way, these orders, firstly as to cumulation and then as to concurrency
(once the serious offender provisions are triggered) result in a total effective
sentence of 23½ years imprisonment.
Non Parole Period
80
I fix a period of 19 years during which you will not be eligible for release on
parole.
Pre sentence detention
81
You have been in custody since your arrest in New South Wales on 20 July
2012, a period of 403 days. I declare under s.18 of the Sentencing Act that
this period of 403 days is to be reckoned as a period of imprisonment already
served under this sentence. That declaration is to be noted in the records of
the Court.
82
I think I will ask you to have to a seat for the balance of my remarks, thank
you.
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Licence Order
83
On charge 1, you have been convicted of theft of motor
vehicles.
Consequently I am required to make an order against your licence.
All
licences and permits to drive are cancelled and you are disqualified from
obtaining any permit or driving for a period of 12 months from today’s date. I
accept that this imposes in reality no penalty upon you but I do not judge it to
be sensible or appropriate to order the penalty to be served upon your release
from prison, so distant is that date.
Disposal
84
Application is made under the provisions of the Confiscations Act 1997 for the
disposal of some property referred to in the schedule attached to the draft
order, some 123 items. That application is consented to and I have signed
the draft order and now pronounce it in these terms. Having convicted you of
the offence of abduction and upon being satisfied that the property referred to
in the schedule is property that was used or intended to be used in or in
connection with the commission of the offence I order pursuant to s.78(1) of
the Confiscations Act the forfeiture to the State of the property referred to in
the schedule.
I direct that it be placed into the custody of the Chief
Commissioner of Police and be held by him until 28 days from this date or the
conclusion of any appeal proceeding where it may be destroyed.
464ZFB
85
An application has been made for the retention of the forensic sample
and the results derived from that sample pursuant to the provisions of
s.464ZFB(1) of the Crimes Act 1958. Again that application was not opposed
and as it is in the public interest that the order be made, given the seriousness
of the circumstances of this offence and your lack of opposition, I make that
order in the terms in which it was sought. I now pronounce that pursuant to
s.464ZF(B) of the Crimes Act that the forensic sample and any related
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material and information obtained pursuant to the order under s.464T made
by His Honour Deputy Chief Magistrate Muling on 24 August be retained for
placement on the database. I am satisfied that the order is justified given the
seriousness of the offending, the prior convictions that you possess, the fact
that the order is not opposed and that I judge it to be in the public interest. I
have signed that draft order.
Sex Offenders Registration Act 2004
86
Further, there has been an application made by the prosecution pursuant to
the provisions of the Sex Offenders Registration Act 2004 that you be
registered under that Act. This is not an automatic or mandatory position as
exists in the setting of sexual offences committed upon young persons.
Automatic or mandatory registration would exist in this case only for charge 12
alone, relating as it does to child pornography.
87
That, when viewed in light of your prior matter would, in the absence of a
registration order, have produced an automatic registration leading to a 15
year reporting period. There is however a discretion vested in the court to
make an order compelling your compliance with reporting obligations under
this Act. Rape and abduction are in this case, because they were committed
upon an adult victim, either class 3 (rape) or class 4 (abduction) offences.
The rapes are class 3 offences, the abduction a class 4 offence.
88
As I have said Charge 12 possession of child pornography is a class 2 offence
under the relevant statutory framework. A precondition to the making of the
order sought by the Prosecution is my being satisfied beyond reasonable
doubt that you pose a risk to the sexual safety of one or more persons or of
the community. It is not necessary that the court be able to identify a risk to
particular people or a particular class of people
89
I have reviewed authorities in this area including the case of Chan [2006]
VSCA 125 and also Cheetham [2006] VSCA 126. I have considered the
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extent of any risk posed by you. To make such an order, the risk must be
greater than some theoretical or remote risk.
It clearly is.
Your counsel
concedes that the order should be made for registration under section 11 and
agrees with the calculation of the period for reporting obligations being for the
remainder of your life.
90
Ultimately, I am satisfied beyond reasonable doubt that you do pose a risk
or will upon your ultimate release such as to warrant the making of an order
such as this. I am satisfied of the matters contained in section 11 beyond
reasonable doubt. It follows that I order under section 11 that you comply with
the reporting obligations under this Act. Pursuant to s 34 of the Act you must
comply and continue to comply with your reporting obligations imposed under
this Act for the remainder of your life.
91
I will shortly have handed to you a document that explains the terms of that
Act and the conditions which will apply to you; including the reporting of your
personal details to the Chief Commissioner of Police upon your release from
custody, and thereafter, as I have said, for the balance of your life. You will
also see from this document that this Act of Parliament imposes various other
prohibitions upon you in the future, one of which is a prohibition upon your
gaining any employment in any child-related activity, which is widely defined
under the Act. To do so would constitute a serious criminal offence, as indeed
would any breach of any of your obligations under this Act. You should make
yourself familiar with the terms imposed by this order, and I will ask you
shortly to sign an acknowledgement of the document that comes to you to
explain this material to indicate that you have received it.
SERIOUS OFFENDER
92
You have been sentenced as a serious sexual offender in relation to charge 8,
9, 10, 11 and 12. That fact is to be noted in the records of the Court.
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6AAA
93
I have passed a lesser sentence in relation to the charges because you have
pleaded guilty.
Had you been found guilty following a trial I would have
imposed a term of 30 years imprisonment upon you. I would have fixed a non
parole period of 26 years. This statement made pursuant to section 6AAA is
to be entered into the records of the Court.
94
Mr Sonnet and Mr Hughan, are there any other matters that I've overlooked in
terms of ancillary or formal matters.
95
MR SONNET: No, Your Honour.
96
HIS HONOUR: And as I say I sat where you sat, years ago now, but that's
why I provided you the script of the sentences. Firstly, you understand the
actual individual terms?
97
MR SONNET: Yes, Your Honour.
98
HIS HONOUR: And the reason why I moved from cumulation to concurrency
is to follow the statutory framework. In terms of the mathematics you'll tell me
if there's any issue in terms of that.
99
MR SONNET: No, I've checked that and my instructor checked it and the
mathematics are as - - -
100
HIS HONOUR: Yes, all right.
101
MR SONNET: No other orders are sought, Your Honour.
102
HIS HONOUR: Yes, all right. Mr Hughan, any matters that you seek to raise?
103
MR HUGHAN: No, Your Honour, and I agree with Your Honour's arithmetic.
104
HIS HONOUR: Thank you, all right. Look what I'll have done now then, I'll
have the document that I said I would - in relation to the Sex Offenders
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Registration Act taken down for signature by your client, Mr Hughan. You
understand, you've seen these before, they're lengthy documents, it’s not
contemplated that he's going to sit there and read now or understand now all
of the terms, it's simply to signify that he's been given it.
105
MR HUGHAN: Would it assist Your Honour if I accompanied Your Honour's
Associate in that?
106
HIS HONOUR: Of course, yes. Why don't you go down while I'm looking at
these documents, Mr Hughan, and just explain what’s about to happen.
107
MR HUGHAN: As Your Honour pleases.
108
HIS HONOUR: Yes.
109
MR HUGHAN: Yes, Your Honour.
110
HIS HONOUR: I'll have that notification of reporting obligations document
taken down and provided to your client for signature at this stage, Mr Hughan.
(Orders signed and acknowledged.)
111
Mr Hughan, that document has been signed by your client, I will sign it as well
and we'll have a copy of that provided in due course, all right.
112
MR HUGHAN: If Your Honour pleases.
113
HIS HONOUR: Are there any others that I need to deal with in relation to this
matter.
114
MR HUGHAN: Not from me, Your Honour.
115
HIS HONOUR: Mr Sonnet, there have been a couple of requests from the
media, as I understand it, for access to - let me just chase those down. I think
one was access to some of the photographs.
116
MR SONNET: Yes, Your Honour.
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DPP v. Pilgrim
117
HIS HONOUR:
That were tendered on the plea and the others seem to
documentary exhibits, photos, DVDs. There are no DVDs, are there that have
been tendered?
118
MR SONNET: No, Your Honour.
119
HIS HONOUR: Or record of interview, well there's none. Does the Crown
have any particular attitude to the release of the photos? I suppose the reality
is it's up to the Crown what the Crown releases.
120
MR SONNET: Yes, it's generally the Crown's practice not to agree to the
release of photographs unless it really assists in the press reporting this
particular matter and bearing in mind the lengthy summary which provides an
extraordinary amount of detail as to the offending, the Crown doesn't see any
reason to depart from its conventional practice. I can indicate that this is a
practice that's adhered to in the Supreme Court. The Crown is adopting the
same position it did in respect of the recent case of Bayley so as I say it's
nothing unusual for the Crown to resist the release but as I say it's a matter for
Your Honour. Your Honour does have power to grant release but that's as far
the Crown can take it.
121
HIS HONOUR:
Well there's obviously an interest in the photographs I
imagine and the descriptions in the summary of, for instance, the sound proof
zone and there are photographs that portray that. I hear what you say as to
the Crown's usual practice. Is there any particular vice in the court releasing
or providing access to the photograph exhibits in this case or not?
122
MR SONNET:
No, there's no particular vice, Your Honour, once they're
tendered, as I say, they can be released to members of the press but as I say
the Crown's practice is to generally resist the release of such material. We do
so because we say it doesn't assist the press in the proper reporting of this
matter in light of a very extensive opening and that the photographs in
question no doubt the press are particularly interested in we don't see any
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DPP v. Pilgrim
need for those photographs to be released in the circumstances. The only
other matter is I don't know whether the press seek access to the victim
impact statements. I can indicate we strongly resist.
123
HIS HONOUR:
I'm not going to grant any access to the victim impact
statements.
124
MR SONNET: Yes, thank you.
125
HIS HONOUR: Or for that matter to the psychiatric or psychological material
that's been provided. Nor for that matter the letter from the parents of Mr
Pilgrim.
I mean they obviously would have access to the summary of
prosecution opening, I don't think anyone could take issue with that.
126
MR SONNET: No, and we're happy for that to be released.
127
HIS HONOUR: I've incorporated that opening into my written reasons .
128
MR SONNET: I can indicate that the Crown has already released a copy of
the opening to members of the press on a previous occasion and we have no
problems with the release of that particular document.
129
HIS HONOUR: Yes.
130
MR SONNET: But as I say I think I've taken it as far as I can now, Your
Honour.
131
HIS HONOUR:
Let's take it one further step then, just supposing I grant
access to the photographs though I could never know precisely which
photographs are going to be honed in I think it’s probably reasonable to think
that there might be a focus on the sound proof cubby or zone
132
MR SONNET: Yes.
133
HIS HONOUR: Is that sort of image the sort of image which if I grant access
to it it's going to be in the media, it's going to be on the news, it's going to in
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the television, is that the sort of thing that's likely to add to the impact upon the
victim? If it is I wouldn't grant access.
134
MR SONNET: I can seek those instructions.
135
HIS HONOUR: I don't think you need to, I think she's present in court.
136
MR SONNET: Yes.
137
HIS HONOUR: And I can see a number people in the back row giving pretty
clear indications.
138
MR SONNET:
Yes.
And the informant has just nodded to myself, Your
Honour, as I say, it just adds a level of I suppose graphic detail that obviously
has you know an added impact upon the victim and these are very traumatic
offences.
139
HIS HONOUR:
There's a description of that zone and the way it was
constructed, I'm not going to grant access to the photographs in the
circumstances.
140
MR SONNET: If Your Honour pleases.
141
HIS HONOUR: Yes, all right. Now look I've asked you about three times,
you've probably told me each time I've asked you, are there any other matters
at all or not?
142
MR SONNET: I don't believe so, Your Honour.
143
HIS HONOUR:
Yes, all right, thanks very much each of you for your
assistance.
144
Remove Mr Pilgrim please.
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