Abdullahi v The King
[2023] VSCA 110
•12 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0190 |
| SACID ABDULLAHI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | KYROU JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 12 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 110 |
| JUDGMENT APPEALED FROM: | DPP v Shekhe & Abdullahi (County Court, Judge Wischusen, 18 November 2022) |
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CRIMINAL LAW – Appeal – Sentence – One charge of rape, two charges of sexual assault – Total effective sentence 7 years – Non-parole period 4 years and 6 months – Whether judge breached parity principle – Whether sentence manifestly excessive – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms S Lenthall | ||
| Respondent: | Ms A Moran | ||
Solicitors | |||
| Applicant: | Greg Thomas, Barrister & Solicitor | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 7 October 2022, the applicant was convicted by a County Court jury of the offences in the table below and on 18 November 2022 he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Shekhe & Abdullahi (County Court, Judge Wischusen, 18 November 2022) (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Sexual assault [Crimes Act 1958, s 40(1)] 10 years 6 months Nil 2 Rape [Crimes Act, s 38(1)] 25 years 7 years Base 3 Sexual assault 10 years 6 months Nil Total Effective Sentence: 7 years Non-Parole Period: 4 years, 6 months
The applicant’s co-offender, Sidi Shekhe, pleaded guilty to one charge of rape on 29 September 2022. This was the day before his scheduled trial, and followed a sentence indication and a negotiated outcome. He was sentenced by the same judge on 18 November 2022 as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Rape 25 years 4 years, 6 months N/A Non-Parole Period: 3 years Section 6AAA Statement: 7 years, 6 months
Non Parole-Period 5 years
The applicant now seeks leave to appeal on the following grounds:[2]
1.The learned sentencing judge erred by imposing on the applicant a sentence that, when regard is had to the sentence imposed on the co-offender Shekhe, breached the principle of parity.
2.The sentence imposed on charge 2 and the non-parole period are manifestly excessive in all of the circumstances, and particularly in light of the prospect of the applicant being deported upon completion of his sentence.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
In early August 2018, the 18 year old female victim of the offences committed by the applicant and Shekhe began corresponding with Shekhe via Facebook. On 17 August 2018, Shekhe telephoned her and asked her to go out with him that evening. Shekhe told her that he and a friend would pick her up. She eventually agreed.
Shekhe and the applicant arrived by car at the victim’s address at around 9:00 pm. The applicant was driving. The victim got into the back seat of the car. She and Shekhe discussed purchasing marijuana. As the three of them drove around, Shekhe said to the victim ‘You’re going to give me oral?’ Later, Shekhe showed her a kitchen knife he had brought with him.
After driving around for some time, the three of them arrived at Altona Beach, where Shekhe made a number of telephone calls to purchase marijuana. They then drove to an address in Altona where Shekhe bought marijuana. When he returned to the car, Shekhe told the victim that she was going to give him ‘head’ and would then do the same for the applicant. Shekhe said that if she did not give him oral sex, he would not take her home.
Shekhe, the applicant and the victim drove to a nearby park where they got out of the car and smoked marijuana. Shekhe then asked the victim to take a walk with him. They walked and spoke for a while, after which he asked her for oral sex. When she refused, he grabbed her by her shoulders and pushed her down onto her knees. He then undid his pants, pulled out his erect penis and pushed it in and out of her mouth. She said that she wanted to go, to which Shekhe replied that he wanted to keep going until he ejaculated. Shekhe then put his penis back in the victim’s mouth until he ejaculated. The two acts of oral penetration comprised the rolled-up charge of rape for which Shekhe was sentenced.
Shekhe and the victim then walked back to the car and she entered the car. He told her that if she did not give the applicant oral sex, she would be stabbed and left on the side of the road. She agreed if they took her home afterwards. Shekhe and the applicant yelled at her to get out of the car.
The victim got out of the car and walked with the applicant. He touched her breasts over her clothing (charge 1 against the applicant — sexual assault). She said ‘Don’t touch me’. At his request, she sat on top of him on a seat at the park, but he was unable to achieve an erection. In response to the applicant yelling at her to ‘do something’, she said that she just wanted to go home.
They then returned to the car and got into the back seat. He told her that if she did not want to have oral sex, they should have penile/vaginal sex instead. She said that she did not want to do this either. He was then able to achieve an erection and told her to perform oral sex, which she did until he ejaculated (charge 2 against the applicant — rape).
The applicant touched the victim’s vagina over her clothing until she pushed his hands away telling him, ‘Don’t touch me’ (charge 3 against the applicant — sexual assault).
The victim was then driven home.
In April 2019, Shekhe declined a request to be interviewed by police. The applicant was interviewed in May 2019. He denied engaging in non-consensual sexual acts with the victim. Both offenders were charged in January 2021.
Personal circumstances of the applicant and Shekhe
The applicant was 21 years old at the time of the offending and 25 at the time of sentencing.[3]
[3]These ages are based upon the judge’s sentencing remarks, the submissions of the applicant on the plea and a psychological report by Gina Cidoni, which was tendered on the plea. However, in the orders made by the judge recording the sentence, the applicant’s age is stated as 27 at the time of sentence.
The applicant was born in New Zealand and raised by both parents who are of Somalian heritage. He reported that his parents witnessed terrible things in Somalia and that his family spent four years in a Kenyan refugee camp before moving to New Zealand. He moved to Australia with his family in 2013, when he was 16. However, his father remained in New Zealand. There is no history of family violence or parental drug use.
The applicant has nine siblings who are aged between 8 and 29 years. His eldest half-brother is a strong supporter of him. Another brother was deported to New Zealand around 2021.
One of the applicant’s brothers and a nephew died in a motor vehicle accident in September 2021. Other traumatic events in the applicant’s life included the murder of a cousin, the deaths of friends and witnessing a stabbing in prison.
The applicant was bullied at school. He completed Year 12. He has a limited work history, holding only one job, namely, ‘pick packing’, in 2021.
The applicant began using cannabis from the age of 13 and smoked around 3 grams every day when he arrived in Australia. Following his brother’s death, he consumed alcohol, Xanax, cocaine and codeine frequently.
At the time of the offending, the applicant did not have a criminal record.
The applicant never became an Australian citizen and faced the risk of deportation due to the current offending.
Shekhe was 18 years old at the time of the offending and 22 at the time of sentence.
Shekhe was born in Australia and is of Somalian background. He and his mother were physically beaten by his father while he was growing up. His father and mother separated when he was 10. Shekhe has one half-brother aged 21 and five biological siblings aged between 8 and 16. He reported being responsible for the care of his siblings, as his mother worked long hours.
Shekhe described being bullied at school. He left school in Year 10 and began selling drugs. He has partially completed a carpentry pre-apprenticeship and worked for about five months in a carpentry job. Shekhe has had two other jobs working in retail and at a warehouse.
Shekhe was involved in a motor vehicle accident at the age of 14, in which he sustained a broken femur. He described this event as traumatic, as he thought he was never going to walk again. He also described as traumatic his grandmother’s passing and the loss of six close friends through car accidents and drug overdoses.
Shekhe first used cannabis at age 17 and began using cocaine and MDMA heavily at 18. He also used Xanax tablets daily.
On 17 April 2018, prior to the offending, the Children’s Court placed Shekhe on a good behaviour bond for 6 months for the offence of retention of stolen goods.
Plea hearing
At the plea hearing, the applicant tendered a report dated 2 November 2022 prepared by a psychologist, Gina Cidoni. She opined that the applicant suffered from:
(a)persistent depressive disorder with anxious distress and persistent major depressive episode (moderate);
(b)cannabis use disorder in sustained remission;
(c)anxiolytic and stimulant use disorders in early remission; and
(d)post-traumatic stress disorder (‘PTSD’).
Ms Cidoni assessed the applicant’s risk of sexual recidivism as ‘low-moderate’ and stated that he had ‘an undeveloped ability to regulate and manage emotional states, impulses and risk-taking’. She said that the applicant’s ability to see beyond himself when considering a problem and to consider the perspective of others or long-term consequences was compromised. She considered that these factors influenced how he behaved at the time of the offending.
Ms Cidoni reported that the applicant had difficulty taking responsibility for his offending, but accepted that the offending was wrong. She stated that the prison setting would negatively affect his mental health.
Shekhe also tendered a report by Ms Cidoni, which was dated 31 October 2022. She stated that Shekhe told her that he was disgusted with his offending and blamed no one but himself. She opined that his risk of sexual recidivism was moderate. She diagnosed Shekhe with:
(a)substance use disorder in enforced remission;
(b)PTSD; and
(c)generalised anxiety disorder with depressed mood.
According to Ms Cidoni, prison would change Shekhe’s life, as his complex and traumatic background and poor coping could intensify his mental health issues. She concluded that Shekhe’s PTSD adds to higher tensions and distress in a prison setting and would weigh more heavily upon him.
Sentencing remarks
The judge stated that the applicant was not entitled to the benefit of a plea of guilty or to any indication of remorse that such a plea may have demonstrated.
The judge held that the applicant was to be regarded as still a youthful offender, as he was only 21 years old when the offending took place.[4]
[4]See n 3 above.
The judge said the following about the relevance to the exercise of the sentencing discretion of the risk of the applicant being deported due to the current offending:
I have taken into account the fact that your conviction for these offences renders you liable, as a non-citizen resident in Australia since 2013, to deportation to New Zealand. This it was submitted, and I accept, … operates as a form of extra curial punishment because you have … been [a] resident in Australia since your childhood and all your substantial family connections are here. I accept also that your time of imprisonment will be more burdensome for you in contemplation of your inevitable deportation.[5]
[5]Sentencing remarks, [46].
The judge held that, as Shekhe had pleaded guilty to a new indictment after negotiation and a sentence indication hearing, it was an early plea and was ‘some indication of remorse’.[6] The judge stated that Shekhe’s plea had facilitated the course of justice and was to be accorded additional weight because it was entered during the Covid-19 pandemic.[7]
[6]Sentencing remarks, [27].
[7]Sentencing remarks, [27], citing Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
The judge found that Shekhe had good prospects of rehabilitation.
In relation to both offenders, the judge took into account their youth. He also took into account the delay between the offending and sentence. He said that the delay deprived Shekhe of the opportunity to be sentenced to a Youth Justice Centre.
The judge noted that the standard sentence for rape is 10 years’ imprisonment. He said that he would impose sentences upon the offenders that were significantly less than the standard sentence having regard to his assessment of the gravity of the offending and the weight he had given to the matters they had raised in mitigation. However, the judge did not make any express finding regarding the gravity of the offending.
For both offenders, the judge found that general and specific deterrence, denunciation and just punishment needed to be given weight.
The judge did not refer to the parity principle and did not make any findings about the relative seriousness of the role of each offender in the offending or their respective moral culpability.
Ground 1
Parties’ submissions on ground 1
The applicant submitted that the sentence imposed upon him offended the principle of parity. He accepted that there were some differences to justify the higher sentence imposed upon him compared to Shekhe for the charge of rape. However, he contended that the disparity between sentences was too great having regard to the following circumstances:
(a)Shekhe played the leading role in the events of the night;
(b)the applicant’s offending was opportunistic and unplanned;
(c)the applicant faced a single charge of rape comprising a single act, whereas Shekhe faced a rolled-up charge comprising two acts of oral penetration;
(d)Shekhe’s moral culpability was higher than the applicant’s; and
(e)unlike Shekhe, the applicant faced the prospect of deportation upon completion of his sentence.
The applicant argued that the following factors were common to the two offenders:
(a)both had no prior convictions, although Shekhe had a previous finding of guilt in the Children’s Court;
(b)both had offended subsequently – Shekhe had served an 18-month term of youth detention, whereas the applicant had served 270 days in adult custody;
(c)limbs 5 and 6 of Verdins[8] were enlivened for both of them;
(d)both had significant histories of substance abuse; and
(e)both experienced disadvantaged upbringings.
[8](2007) 16 VR 269, 276 [32] (‘Verdins’).
According to the applicant, Shekhe’s guilty plea did not justify the marked disparity in the sentences. He submitted that, although it was an early plea because it followed a negotiated outcome, Shekhe’s counsel cross-examined the victim at a contested committal hearing.
The Crown submitted that the disparity in the sentences imposed upon the two offenders was rational and justifiable. The Crown pointed to the s 6AAA statement that Shekhe would have been sentenced to 7 years and 6 months’ imprisonment if he had not pleaded guilty as illustrative of the judge’s consciousness of the parity principle.
The Crown contended that the lower sentence imposed upon Shekhe was justified in line with the standard practice of sentence discounts for guilty pleas, which demonstrated remorse, reduced the impact upon the victim and had significant utilitarian value in the time of the pandemic.
The Crown argued that, as well as the plea of guilty, there were a number of critical differences between the applicant and Shekhe. These included that Shekhe was younger than the applicant and, as a result of the delay, lost the opportunity to be sentenced to a Youth Justice Centre.
Decision on ground 1
The parity principle requires that there be consistency in the sentences imposed upon co-offenders unless there are such differences in their roles in the offending or their personal circumstances that warrant disparity in their sentences. The absence of a rational explanation, based upon differences in the roles or personal circumstances of co-offenders, for the imposition of markedly disparate sentences can give rise to a justifiable sense of grievance in the co-offender upon whom a harsher sentence is imposed. Ordinarily, in a case such as the present, in order to succeed on a ground that relies upon the parity principle, an offender must persuade this Court that the disparity in sentences was not reasonably open to the sentencing judge.[9]
[9]See generally Ryan v The Queen [2016] VSCA 255, [42]; Farrugia v The Queen [2022] VSCA 104, [21].
In my opinion, it is not reasonably arguable that the disparity in the sentences imposed upon the applicant and Shekhe was not reasonably open to the judge. Accordingly, leave to appeal will be refused in relation to ground 1.
The factors that are common to the two offenders, in addition to those relied upon by the applicant,[10] are as follows:
(a)Both met the victim and, in the same location and on the same evening, separately raped her by penetrating her mouth despite her protests.
(b)Both were young at the time of the offending.
(c)Both suffered from PTSD.
(d)Delay was a mitigating factor for both.
[10]See [44] above.
Ordinarily, these similarities, viewed in isolation, would require that similar sentences be imposed upon the offenders. However, there are significant differences in the roles of the offenders and their personal circumstances, some of which favour the applicant and some of which favour Shekhe.
The main factors that favour the applicant are as follows:
(a)Shekhe’s role in the offending was more serious than that of the applicant and his moral culpability was higher than that of the applicant. Shekhe initiated and co-ordinated the offending. He also threatened the victim, displayed a knife and was physically violent towards her at the time he demanded oral sex. In addition, Shekhe was sentenced for a rolled up charge of rape – comprising two acts of oral penetration – whereas the applicant was sentenced for a single act of oral penetration.
(b)The applicant was exposed to the risk of deportation whereas Shekhe was not.
(c)The applicant suffered from persistent depressive disorder, whereas Shekhe did not.
The main factors that favour Shekhe are as follows:
(a)Shekhe was entitled to significant moderation in his sentence due to his guilty plea during the currency of the Covid-19 pandemic. The plea demonstrated remorse and had significant utilitarian benefit.
(b)Although both offenders experienced disadvantaged upbringings, Shekhe experienced family violence, whereas the applicant did not.
(c)Although both offenders were young at the time of the offending, Shekhe was only 18 and was deprived of the opportunity of being sentenced to a Youth Justice Centre due to delay for which he was not responsible.
(d)The judge assessed Shekhe’s prospects of rehabilitation as good. The judge did not make any express finding about the applicant’s prospects of rehabilitation.
Of all the factors referred to at [44], [51], [53] and [54] above, by far the most significant was Shekhe’s guilty plea. That factor, in combination with the other factors favouring Shekhe, substantially outweighed the factors that were common to both offenders and the factors favouring the applicant, and warranted the difference in the sentences imposed on the offenders for the charge of rape. It follows that the disparity in sentences for that charge was reasonably open in all the circumstances of the case.
Ground 2
The applicant submitted that the sentence was manifestly excessive because his offending lacked physical violence or pre-planning and he was able to rely upon powerful matters in mitigation, being his youth, lack of prior convictions, difficult upbringing, application of limbs 5 and 6 of Verdins, and the prospect of deportation. This prospect was said to be a significant matter, particularly in the light of the applicant’s age, the fact that he has resided in Australia since childhood and his strong family ties in this country. The applicant contended that this mitigating factor was not adequately reflected in the sentence imposed by the judge.
The Crown submitted that the sentence was within the available range, and despite the matters relied upon in mitigation, the judge was correct to take into account general and specific deterrence as well as denunciation and just punishment.
In relation to the prospect of deportation, the Crown contended that the judge acknowledged and gave weight to both limbs of Guden v The Queen[11] and that deportation was just one factor to be taken into account in sentencing the applicant. The Crown argued that New Zealand, where the applicant was likely to be deported, is not unfamiliar to the applicant. The Crown also relied upon the fact that the applicant’s father and one of his brothers reside in New Zealand. According to the Crown, the graver the offending, the less weight is to be given to deportation as a mitigating factor.
[11](2010) 28 VR 288, 295 [27] (‘Guden’). The two limbs of Guden are reflected in the following observations: ‘the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, … in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. … [T]his may well be viewed as a serious “punishing consequence” of the offending.’
In my opinion, ground 2 is not reasonably arguable and, accordingly, leave to appeal will be refused in relation to it.
I accept that the applicant was able to rely upon a number of important mitigating factors. However, they did not include a plea of guilty, remorse and a favourable finding in relation to prospects of rehabilitation, and he was thus not entitled to the significant moderation in sentence that would have applied due to them. In addition, the mitigating factors upon which the applicant was able to rely had to be considered in the context of the gravity of his offending, his moral culpability, the standard sentence of 10 years’ imprisonment and the maximum penalty of 25 years’ imprisonment for the offence of rape.
The judge did not make any express findings in relation to the gravity of the applicant’s offending or his moral culpability. However, they were important sentencing considerations because the applicant insisted on the victim giving him oral sex despite her protests that she just wanted to go home, and her evident distress. Although he orally penetrated her once, he demanded oral sex on two occasions. On the first occasion, when he was unable to achieve an erection, he yelled at her to ‘do something’. Prior to the second occasion, he told her that if she did not want to have oral sex, they should have penile/vaginal sex. The applicant treated the victim as a mere object for his sexual gratification and his conduct humiliated and dehumanised her.
Specific deterrence was also an important sentencing consideration because the applicant’s risk of recidivism was assessed as ‘low/medium’.
Although the standard sentence of 10 years’ imprisonment is only one of many sentencing factors that contribute to the intuitive synthesis, the fact that the sentence imposed upon the applicant was three years less than the standard sentence supports my conclusion that the sentence was not manifestly excessive. The fact that the sentence was 28 per cent of the maximum penalty of 25 years’ imprisonment also supports my conclusion.
There is no substance to the applicant’s implicit contention that the judge failed to give sufficient weight to the risk of the applicant’s deportation and that this contributed to the excessiveness of the sentence imposed upon him. The fact that the judge devoted a separate paragraph to the issue of deportation – see [36] above – indicates that he gave prominence to this factor. Moreover, the contents of that paragraph make it clear that the judge took into account both the fact that the applicant would be deprived of the opportunity of continuing to live in Australia and the additional burden of imprisonment due to the stress of exposure to deportation. It follows that I accept the Crown submission that the judge took into account both limbs of Guden.
In all the circumstances, the sentence of 7 years’ imprisonment that the judge imposed upon the applicant for the charge of rape was well within the range of sentencing options reasonably open to the judge.
Conclusion
For the above reasons, the application for leave to appeal against sentence will be refused.
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