DPP v Grasserbauer [2016] VCC 343

Sentence summary: Rape

The offender and victim had previously been in a relationship and both experienced mental illness. Together they drank a bottle of wine and spirits at the offender’s house. The victim decided to stay the night instead of driving home. They watched some pornography together. She took anti-psychotic medication before falling asleep on the couch. She woke some time later with the sensation that something had been put in her vagina. Her t-shirt and bra had been moved to expose her breasts and her underwear was pulled down with her legs apart. The offender was sitting naked from the waist down, masturbating. She later confronted the offender about his actions and he admitted “I put my hand in you.”

The offender pleaded guilty to rape.

The judge took into account the offender’s guilty plea, profound remorse and shame. The offender received an additional benefit because the case could not have been prosecuted without the admissions he made.

The offender was sentenced on the basis of the profound effect of his conduct on the victim, as described in her victim impact statement.

A number of other matters in mitigation could be relied on by the offender. He pleaded guilty at an early opportunity and had no prior criminal matters. He had a recently diagnosed intellectual disability. He had a long history of mental health issues, which result in over 40 psychiatric admissions and numerous suicide attempts. He experienced major depression, anxiety and obsessive compulsive disorder.

The offending was serious. The sentence had to appropriately punish and denounce the conduct. Specific deterrence was not of significance because the offender was a low risk of re-offending. General deterrence was also given less weight because the offender’s personal circumstances, including intellectual disability and mental health conditions, made him less appropriate to be made an example of.

As a result of the unusual circumstances of this case, a Community Correction Order was determined to be sufficient punishment.

The offender was sentenced to a four-year Community Corrections Order.

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Page last updated: 26 August 2018