Director of Public Prosecutions v Abbas

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-17-00909
Ind G102715231

DIRECTOR OF PUBLIC PROSECUTIONS

WAJAHAT ABBAS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2017
DATE OF SENTENCE:	25 July 2017
CASE MAY BE CITED AS:	DPP v Abbas
MEDIUM NEUTRAL CITATION:	[2017] VCC 991

REASONS FOR SENTENCE

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Catchwords: Rape (composite charge relating to three penetrations of a 15 year old girl)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Batten	Office of Public Prosecutions
For the Accused	Mr Hughan	Stary Norton Halphen

HIS HONOUR:

Wajahat Abbas, you have pleaded guilty to one charge of rape laid on indictment G102715231. Though a single charge, it is laid on a composite basis and relates to three different acts (and types) of penetration committed upon a 15 year old victim. This struck me as a most unusual way to frame the charge, given the three types of penetration and the time frames involved. I asked the prosecutor why it had been framed in that way. I had never seen such a charge framed in this way.
It would seem that he had posed the same question to those instructing him. Of course, one consequence of such an approach was that the serious sexual offender provisions within the Sentencing Act 1991 had no application in this case, given that there is only a single charge. My enquiry produced the answer that the matter had resolved with the negotiation that the charge be framed in this way. That was not much of an answer to my query. Ultimately though, it is a matter for the Director to frame the indictment and the charge was not to my mind, actually defective in any way. However, what must be constantly borne in mind, is that when in the course of these reasons, I describe the single charge of rape to which you have pleaded, that single charge involves these three modes of penetration, not merely a single act.
The offence carries a 25 year maximum term of imprisonment.

You are 44 years old and have no criminal history.
Facts
This matter was opened to me last week by Mr Batten who appeared on behalf of the Director of Public Prosecutions. A written opening, dated
19 July 2017, was marked as Exhibit A on the plea. Your counsel told me that this was an agreed opening, though took me to one matter disclosed in his written outline, dealing with the aspect of the first kiss. I regard it then as unnecessary in such circumstances to restate now the full factual basis of sentencing. Exhibit A will remain on the court file and I will not go beyond that agreed statement.
You do not need me to tell you how serious your offending was. You were at the time a 42 year old man, working casually as a security guard doing overnight patrols in the Newport area. Your victim was a 15 year old girl. She was in the care of the Department of Health and Human Services and was living with a new foster family. You were not to know that. On the day of the offending, she had been out that night to a party. She left the party, but had no phone. She got to the Newport station at around 12.30 am, but had missed the last train to get home to her foster carer. She was anxious to get home as it was a quite new foster placement and she had promised to be home by 10 pm. She had been unable to get a lift with some friends that she had met as their car was full. She had no way of getting home and just waited at the station for some time before going and waiting outside a hotel. It was very early in the morning. She did not know what to do. It was 3 am.
You were doing a security patrol in a car and stopped and asked if she wanted to come with you. She got in, though it is plain enough that the markings on your car did not play any role in her decision to enter your car. You agreed to take her to her home, though as you drove away, you told her that you worked for a security company and had to do some jobs before taking her home. Those jobs were in relatively isolated and deserted industrial areas. You told her she was really pretty. You asked her age and she told you she was 15. This was early on. You lied about your age saying you were 28.
The drive was interrupted by a number of occasions of your stopping the vehicle and parking. In the course of the journey you raped her and that despite her verbal and physical protests. Despite her telling you “no” or to stop on a number of occasions. Despite her displaying clearly by word and by action, her absolute lack of consent. At one early point, before the first penetration, she told you she was on her period. You said that was "Okay, it didn’t matter" and you did not care. At one point she screamed "Stop", but she could not get out of the car as the doors were locked.
At the outset, she had tried to push you off as you tried to kiss her, though I accept the point raised by Mr Hughan, as to her initially saying “Yeah” in relation to your request to kiss her. See the depositions at page 28. It matters little as there were very many occasions thereafter where there was nothing even vaguely ambiguous as to her lack of consent. You were in control of the situation. There were gaps as you continued to drive between various events. The rape charge comprises three forms of penetration and they certainly did not just run into each other. Not at all. The conduct spanned something in the vicinity of an hour. Digital/vaginal, penile/oral and penile/vaginal penetration. It was without protection and you ejaculated. Your semen was found on her sanitary pad though it is not clear if you ejaculated within her.
At the end of all of this, you then dropped her home. There is an undoubtedly odd aspect to the nature of the discussions you were having with her prior to dropping her home.
Your victim immediately complained to her carer and later that same day, she complained to the police. Her statement was recorded on 22 January and you were arrested and interviewed the same day. You made some admissions, but categorically denied any acts of penetration. The DNA evidence subsequently proved the lie. You were charged and bailed to appear at court on 29 January. You were required to surrender your passport and there was a prohibition upon your attending the airport, but attend it you did, to fly out of the country the following day on 23 January. You returned towards the end of the year and have been in custody since your return.
The agreed summary goes into greater detail. I have only briefly summarised the conduct. The summary also sets out a chronology of the procedural history as does your counsel’s outline.

Victim Impact statement

Your victim has made a victim impact statement dated 12 July 2017. It was read to the court and I have read it again since the plea. Your criminal conduct involved violation of her and has deeply impacted upon her. How could it not?
She was a 15 year old girl. She felt violated, scared and shocked and has tried to block out your conduct by increasing the use of drugs. She has not known how to deal with the impact and does not like to talk about the crime. I take into account the significant impact of your crime upon your victim.
Mitigation
Your counsel, Mr Hughan, in his customarily excellent plea, raised a handful of matters in mitigation which included:
·Your early guilty plea;
·The absence of any relevant history;
·The risk of deportation;
·Your personal background;
He placed before me some letters or reports from three health professionals which dealt with medical and mental health issues, none of which were said to elevate your custodial burden. He argued that you had reasonable prospects of rehabilitation.

He made some submissions as to the offending and where it sits on the spectrum of offence seriousness. However, he conceded the existence of a number of matters of aggravation, the seriousness of the offending and the inevitability of a term of imprisonment.
Prosecution
The prosecutor, Mr Batten, raised a number of matters of aggravation, including the age and known vulnerability of the circumstances of the victim, the fact of unprotected penetration occurring over a not insignificant period, the charge embracing, as it did, those three acts, the complainant having her period and telling you that, her repeated protests physically and verbally and your persistence in the face of such conduct, the fact that you had the power over the young girl, courtesy of your age, and the fact that you were driving the vehicle, and that she was desperate to get home. As I have said already,
Mr Hughan did not take issue with the various matters of aggravation raised by the prosecutor.
I raised myself the difficulty of acceptance of one submission made by the prosecutor, as to the offending occurring in the currency of a false imprisonment. You are not charged with that offence. I will not sentence you for that crime, though it is clear enough, that your driving of the car, posed practical difficulties for the complainant in leaving your company. The prosecution took issue with the second limb of the case of Guden having any role, but did not dispute that there was an increased burden owing to the potential risk of deportation in this case.
The parties each sought to place the case at a point in the spectrum of offence seriousness. The prosecutor suggested it was above the mid-range and towards the upper end of the scale. Your counsel suggested it was towards the upper end of the mid-range, though conceded that it was a very serious offence committed, as it was, with some persistence.
Background
I turn very briefly to your background before turning to consider these various matters. Your counsel referred to your background in his excellent written submissions and further described it in oral submissions that he made to the court. Let me digress for one moment. I am probably pretty slow to praise the efforts of those who appear before me. Often enough, I am afraid I have very little reason to offer any praise. If I might say so, Mr Hughan conducted an excellent plea on your behalf. Might I also say that from my observations of him in this, and other cases, that the way he prepares and conducts a plea, is an object lesson as to how it should be done.
Let me then return to the case.
I see no need to restate all of your background now. I am prepared to accept the personal and family background that has been placed before me. It really does not explain in any way your decision to commit this serious offence. Briefly stated, you are now 44 years of age, born on 8 July 1973. You have no prior criminal history and now call in aid your past good character.
You were born and brought up in Pakistan and educated to Year 12 level. You then were employed in a number of jobs. You were involved in running restaurants and travelled to London and other cities in Europe to assist others establish restaurants. You are a married man with two young children. You have family support as evidenced by the presence the other day in court of your wife and sister and brother in law, as well as others.
There is no doubt at all that you have seen many things that no-one should see or be exposed to, including incidents occurring to your father and your wife. You have seen the aftermath of a horrific bombing in Pakistan. The things that no doubt had some role to play in each of you and your wife ultimately being given protection visas when you came to this country. You lived for some time with all the uncertainty which applies to the Asylum seeking process as discussed in one of the letters. You have medical conditions referred to in the medical materials placed before me.
You came to Australia in 2013 and were granted a protection visa in 2015 and you are accordingly a permanent resident. So is your wife. There are the two visas standing independently of each other. Your visa has not yet been cancelled. It is argued that your visa will definitely be cancelled and any application for revocation of, or review of that cancellation is unlikely to succeed. I will return to discuss this later in these reasons.
You have been in custody since your return to Australia in December 2016. In the period when you had fled Australia, you were based in Nepal and then in Malaysia.
Guilty plea
I turn then to the matters raised in mitigation. You have pleaded guilty and you have done that at a relatively early stage. I reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You have owned up to your crime and taken responsibility for it and at an early enough stage. Witnesses have been spared the experience of coming to court. That is very important in a case such as this, where the giving of evidence can be so stressful.
Your young victim has been spared that ordeal and it is still often an ordeal, whatever people may say about the benefits of the alternative procedures now in place for the giving of evidence by child complainants. She speaks in the victim impact statement of the difficulties that she has in discussing the crime and it is obvious enough that the giving of evidence would have been stressful for her. The community has been saved the time, the cost and the effort associated with a contested hearing, either in this court or in the court below. I take these various matters into account in your favour. They are clearly mitigatory.
Remorse
Your counsel did not argue that I should find the presence of any great remorse in this case. His written submissions were silent on the topic of remorse. I raised that matter and he made plain that he was not relying on remorse. He pointed to your interview performance where you denied the actual offending. He later spoke to you at one point, in the course of the hearing of the plea and then told me that you had told him that you were sorry for what you had done, embarrassed and ashamed for your family and sorry for the what you had done to the victim. Mr Hughan was not suggesting there was any evidence of great remorse here. A guilty plea is often, but not always, indicative of some remorse. Your guilty plea was entered at an early stage.
I am prepared to find that you do have some limited remorse. I take the existence of that remorse into account in mitigation. It is better than none.
Delay
Your counsel is not placing any reliance on delay in his case. The fact is, you chose to flee the jurisdiction. That is the only reason that this matter has not been dealt with already. From the point of your arrest in December 2016, there has been an unexceptional chronology. Delay is not a matter of any weight in this case as your counsel made plain.

Rehabilitation

As to your prospects of rehabilitation, your counsel argued that they were reasonable. He relied upon your hardworking and contributing background as well as the absence of any past offending at all. There was the presence of family support. You are a married man. Well you were at the time and that did not impede your serious offending. He argued that the offending should be judged to be aberrant or out of character.
I accept that it was out of character.
In reaching judgments as to risk of re-offence and your prospects of rehabilitation, I can have regard to the deterrent effect of your being arrested and charged and held in custody already for over 200 days. It is your first taste of imprisonment and then there will be the service of the very sizeable term of imprisonment which you will necessarily have to serve. These various things will go some way to deterring you in the future.
What though is your future risk of reoffending? It is nigh on impossible for me to know. There has been no expert material placed before me dealing with any risk assessment. I have your past lack of criminal history and stable background, but I also have the persistent and undoubtedly very serious criminal offence committed by you upon a 15 year old girl. I can only really be quite guarded as to your prosects. You may be required to do a sexual offenders treatment program whilst in custody and that may reduce your future risk.
Your counsel was arguing that you had reasonable prospects of rehabilitation. I am prepared to accept that submission.

As to the reports and letters placed before me, your counsel was not suggesting that any of the principles from a Court of Appeal decision of Verdins were enlivened here. He specifically said that they were not and I am sure that concession was correctly made. Still, that material is of value, and I take it into account in the ways urged upon me.
Additionally, some of the materials dealt with your medical condition. You have suffered from a condition affecting your hips, bilateral hip avascular necrosis. It has not been a minor condition by any stretch of the imagination. You had two bouts of surgery in 2016. Your counsel specifically told me that this condition was not being relied upon as in any way increasing your custodial burden.
Cancellation of visa and risk of deportation
I turn now then to the risk of deportation. Your counsel argues that your visa will be cancelled and that you are highly unlikely to succeed, in any application to review that outcome. I am not allowed to speculate on either score. Your visa has not to this point been cancelled but inevitably you will fail the character test once I have sentenced you for this serious crime. Your counsel was relying on those cases dealing with the mitigatory weight that may in certain cases be given to deportation.
Those cases, including the case of Guden and the more recent cases of

Da Costa Junior, Konamala
, Schneider and Nguyen, deal with the potential impact of deportation, both upon the service of sentence and in the loss of opportunity to permanently settle in this country. Your counsel argued that each matter was raised here, though conceded that neither he, nor I, could know what outcome would actually flow from any attempt to review the cancellation of your visa.
In discussions in the course of the plea, it got to the point where your counsel was arguing that you would probably be deported. He took me to the Ministerial Guidelines and of note is the fact that they are not set in stone and that in some cases, there is the right of further review to a court or to a tribunal. Anyone dealing with either the reconsideration request, or the review, if there is one, will have to pay regard to a variety of matters. One of the primary considerations is the protection of the Australian community from criminal or serious conduct. Another is the expectations of the Australian community. A third is the best interests of minor children in Australia. You have two children. These various considerations are further described in the guidelines.
The Minister, his delegate, or any other body charged with a review, will need to pay regard to what are referred to as the non-refoulement obligations. That is the obligation not to forcibly return, or deport a person to a place where they will be at risk. Given this obligation not to force someone to return to their country of origin if to do so would be inconsistent with our international non-refoulement obligations, this would mean that if the protection visa remained cancelled, you would face the prospect of indefinite immigration detention. This aspect would need to be taken into account in considering whether to revoke the cancellation of the visa.
I do not think it is speculative to conclude that your visa will be cancelled. I will act on the basis that it will be. This is the consequence of the amendments which brought into force automatic cancellation. However, that does not lead to the conclusion that you will ultimately be deported at the end of your sentence. It does not automatically follow. You have potentially a number of rights of review of the Minister’s or his delegate’s decision. Your counsel suggests that it is very unlikely that the Minister, or delegate, or ultimately a tribunal would revoke that cancellation.

In this area I believe I am being asked to speculate. I really cannot know what the Minister will do. It would seem to me that there are some very serious issues for him, or his delegate, or if it comes to it, any tribunal to consider in your case, including the likely remaining in this country of your wife and children, who cannot return to Pakistan and the possibility of non-revocation leading to your indefinite detention.
I simply do not believe it is open to me to treat as a fact your certain or even probable loss of the opportunity to permanently settle in this country. It would be no more than a guess and I will not guess. I am not satisfied on the balance of probabilities that you will be deported. However, I have no doubt at all that this issue of the cancellation of your visa and uncertainty as to your ongoing position in this country will play very heavily upon your mind. How could it not? You will serve the sentence with the very serious question in your mind as to where you will end up. You cannot be sent back forcibly to Pakistan. You will worry about the end position and that of your wife and family. These issues are hardly minor. They will play on your mind and undoubtedly in my judgment would increase your custodial burden.
Current Sentencing Practices
I do take into account as I must, current sentencing practices. I have looked at the Sentencing Advisory Council Snapshot No. 207 of 2017 for rape. I note that prison terms when imposed ranged from three months in combination with a community corrections order, right up to a term of between 11 and 12 years imprisonment. The median principal sentence of imprisonment for rape is five years. The most common sentence falls between four to less than five years, with 48 such sentences. However, there are a sizeable collection of sentences that are higher, some far higher, including 45 sentences of between five and six years, 18 sentences of between six to seven years and 14 sentences of between eight to nine years. There are four sentences spanning nine to ten years and four sentences spanning 10 to 11 years and three, between 11 and 12 years. Of course there are many that fall below any of these figures that I have mentioned. The average sentence increased to five years and three months in the period covered by this snapshot.

I have also looked at the materials available in the Judicial College Sentencing Manual, including the collection of cases dealing with the crime of rape. I have looked at a number of cases including Sharifi [2013] VSCA 126 and the case of Jurj & Miftode v The Queen [2016] VSCA 57. Also the additional two cases to which reference was made by the prosecutor (Werry [2012] VSCA 208 and Cooper [2017] VSCA 8). None of these cases are on all fours with this case. There are many differences, both as to offending and the details of the offender.

There is always an inherent limitation in viewing statistical data and that is the position whether it is the median, the average, or even the most common sentence imposed. This sort of statistical material says nothing about the particular background of the offender. It says nothing about the nature of the crime or the nature of the penetration. It says nothing about the existence or otherwise of aggravating features. It says nothing as to the context of the offending. It says nothing about the age of the victim. Statistical material says nothing as to whether a matter proceeded by way of trial or plea or whether there is remorse or none. Or whether the charge was laid on an individual basis, a representative basis or a composite basis as this charge is.
You have pleaded guilty to a single charge involving three differing acts of penetration spanning a not insignificant time. That is a most unusual feature of this case and the value of the statistics which is problematic at the best of times becomes even more problematic. Nor do other cases provide any firm guidance as to the sentence to actually be imposed in this case. No case is identical. There are always a myriad of differences. I am not suggesting that your conduct falls to be assessed with the same features of aggravation as existed in the case of Jurj to which I previously referred. There are some similarities and very many differences, both as to the crimes and as to personal circumstances.
There is, however, some useful guidance dealing with the claim of opportunism and the manner of assessing offence seriousness. The court in that case said:
“Even if an attack like this can properly be characterised as unpremeditated when it commences, that character is lost once the conduct persists”.
The Court of Appeal went on to say:
“There was plenty of time for them to reconsider and drop her safely somewhere. In this sense the word “unpremeditated” really has no application. This was offending calmly and purposefully embarked upon.” see paragraphs 84 and 85.
The court also dealt with the significance in that case of the ignoring of the complainants obvious distress, and her pleas for them to stop as underlining the humiliation inflicted. For what it is worth, I regard the outcomes ultimately imposed in the case of Jurj & Miftode, to be lenient indeed, given the gravity of their crimes and their conduct of a trial. In any event, other cases are not precedents as to the sentence required in this case.

Sentencing purposes

I turn now to the purposes of sentencing. Sentencing is never an easy task. There is almost always some complexity. That is because a court must take into account a large range of matters and give weight to a variety of sentencing purposes. I must take into account, amongst other things, the maximum penalty and the impact of your crime.
The court must punish you. That is an important sentencing purpose, though the punishment must be just and proportionate.
This court must also manifest its denunciation of your serious offending. Again, this is important and I do. You should be ashamed of yourself. This was outrageous offending targeting a young girl.

I cannot ignore your prospects of rehabilitation. I must have regard to them and I do. I do accept the submission that you have reasonable prospects of rehabilitation. However, I still must give some weight to the need to deter you from offending in the future. This was very serious offending. As your counsel said, it was a spontaneous meeting which became a premeditated activity, given the persistence and duration of the conduct. You must be deterred from ever contemplating committing this sort of serious crime in the years ahead. I believe that this purpose can be moderated to a degree, given your past lack of any criminal offending and my judgment of your having reasonable prospects of rehabilitation. It is still though a relevant purpose of sentencing that must be given some weight.

I must also pay regard to the need to protect the community from you. For the same reasons, whilst I cannot ignore that purpose, I think that it can be moderated to a degree.
I have already spoken of the need to deter you from future offending, that is the concept of specific deterrence and it certainly has a real role in my task. There is another sentencing purpose of great importance in a case such as this. It is the principle of general deterrence. By general deterrence, I mean the court’s obligation to send a clear message to other people in the community that offending such as yours will just not be tolerated.
Repeatedly, our highest court in this State, the Court of Appeal, has spoken of the seriousness of the crime of rape, especially the rape of vulnerable victims. Likeminded offenders must be deterred. Your victim, well she was vulnerable courtesy of her young age and her position at the time. That is, someone who was desperate to get home, but who lacked the means to do so. You entered her life providing the means for her to get home. You offered to help her, but of course in fact you raped her. She was vulnerable and you knew it.

I must pay regard to the maximum penalty. The seriousness with which Parliament views the offence of rape can be determined from the maximum penalty of 25 years imprisonment that applies to it.
Gravity
I must pay regard to the gravity of the offending before the court. Your counsel conceded the existence of the matters of aggravation raised by the prosecutor and referred to earlier by me in these remarks. Your counsel conceded that the fact of the penile penetration being unprotected, was a matter of aggravation in this case. The aggravation lay in the risk of disease and/or pregnancy, owing to the unprotected nature of the penetration.
Mr Hughan accepted that this offending occurred when the victim was vulnerable. It strikes me as an unusual matter for a 42 year old man working at the time, to stop his car at 3 am and invite a young girl to enter his vehicle. One might entertain suspicions as to an evil intent existing at the time you stopped your car. However, I do not sentence on the strength of suspicions. I am not able to find to the required standard that you intended to rape your victim when you first stopped your car, or even at that stage, that you had any intention of any sexual approach.
In that sense, I act on the basis that the meeting was spontaneous and not accompanied by any sinister intent. That changed pretty swiftly. You may have stopped to help her, but what is plain enough is that you pretty quickly determined to help yourself sexually.
Your counsel adopted the reasoning from the case of Jurj quoted earlier in these reasons and conceded that though the meeting was spontaneous, in the sense that there was not any premeditation at all to that point, that spontaneous meeting evolved and the conduct became premeditated, given the duration and the persistence in the face of the attitude of your victim. She was 15 and you knew that from early on. That is a significant matter in this case. She was a soft target and you knew it. She was alone with you in your car which you were driving. You had control and dominance over her.
You had unprotected penile/vaginal and penile/oral sex, and it would seem that you ejaculated at the very least near her vagina. This was not momentary offending. You stopped the car and performed an act covered by the charge, then moved to a different location and committed a fresh act. It is difficult to claim lack of premeditation when conduct persists as it did in this case, in the face of physical and verbal protests, for as long as it did. All of the conduct embraced by this charge, occurred in the face of unmistakeable protests and resistance.
Mr Hughan raised the issue of the first kiss and suggested that though you had no reasonable basis for believing she was consenting to these acts, you did in fact hold some belief that she was. He pointed to the unusual nature of your conduct after the last part of the offending. It is unusual conduct similar to that referred to in the case of Sharifi, but I am certainly not satisfied on the balance of probabilities that you had any belief in her consenting to any of the acts of sexual penetration. Indeed, I am satisfied beyond reasonable doubt that you did not. Her words and acts were clear and when interviewed by the police, you denied the very existence of any of these acts. In fact, if I accepted that submission made by your counsel, I seriously wondered if it would even be greatly mitigatory. If you believed this girl, in those circumstances was consenting, then that would surely be germane to an assessment of your future risk. In any event, as I say, I do not accept that you held that belief.

You were, on the day in question, acting quite deliberately. You were not disinhibited. This was quite startling offending.
One can almost always imagine worse instances of crimes. That is because sadly, we as Judges sitting up here, see often enough crimes with many features of aggravation coming before the court. For instance, crimes committed with the use of weapons or joint or sustained conduct or significant and/or gratuitous violence, over and above the actual violence represented by the act of penetration. We see often enough threats, or conduct that is designed to humiliate and degrade. Well those sorts of matters of aggravation do not exist here, though, as I have said, the acts were not momentary. They were punctuated by breaks in time and location and spanned a period of approximately one hour

Focussing on the absence of some features of aggravation is not particularly helpful in this case. That is because, as your counsel correctly conceded, there are many features of aggravation that are actually present here.
All this talk of the level of offence seriousness can be quite disconcerting to those who sit in court, hearing lawyers trying to rank the particular crime on the spectrum of seriousness. It can easily be misunderstood, almost as suggesting there is an offence of rape that is not serious. So in this case, we had the prosecutor speak of the offending falling towards the top end of the range, and well above mid-range, as opposed to your counsel suggesting it falls in the high end of the mid-range.

The fact is, rape is always a serious criminal offence, however it is committed. I am though required to consider the nature and gravity of the offence, for which I must pass sentence, and that is why these discussions take place before a Judge. This charge of rape very unusually embraces the three sexual acts committed and they were committed upon a 15 year old girl by you, a 42 year old man, and over a not insignificant period. She was a vulnerable 15 year old and known by you to be so, and the acts were unprotected. There was no reduced culpability on your behalf. No disordered or compromised thinking. You rode roughshod over her repeated rejections and her resistance. I judge this rape to be a very serious example of the crime of rape for these reasons.
Would you stand up please.
Sentence
On Charge 1, that is the charge of rape laid on the composite basis, I convict and sentence you eight and a half years imprisonment. I fix a period of 72 months or six years, during which you will not be eligible for release on parole.

Section 18

You have been in custody for a period of 211 days. I order that this period of 211 days has already been served, by way of pre-sentence detention under this sentence. That declaration is to be entered in the records of the court. Have a seat please.
Section 6AAA
Stating the notional sentence which would have been imposed following trial is sometimes extremely difficult. See the case of The Queen v Mohamad, [2009] VSC 56 paragraph [30].
There is a something of a fiction in this case in stating the notional sentence that would have been imposed had you run a trial and been found guilty after trial. That is because no trial indictment would, or could, have contained a single charge relating to these three acts. Had you pleaded not guilty, and then been found guilty by a jury of committing the criminal conduct that I am now dealing with, necessarily there would have been three charges of rape on the trial indictment. That would have brought into play the serious offender provisions within the Sentencing Act in relation to the third sentence imposed, with an increased weight afforded to the protection of the community and the presumption of cumulation of sentence also coming into play as well.
I regard it as quite artificial to state what actual total effective sentence and non-parole period would have been imposed for what would have been a different indictment with some differing considerations. However, you certainly would have received a longer total effective sentence, with a longer non parole period. That is because I have given significant weight to your guilty plea, as discussed earlier in these reasons.
I have been, I must say, tempted, not to make a Section 6AAA declaration, given the artificiality of the exercise in this case, but I have ultimately relented. I believe had you been found guilty after trial, I would have imposed a total effective sentence of 11 years imprisonment. I would have fixed a non-parole period of eight and a half years. For what it is worth, that statement is to be noted in the court records.
Sex Offenders Registration Act 2004
Finally, I move to the Sex Offenders Registration Act and the order required there. The offence on the indictment is a Class 1 offence under the Sex Offenders Registration Act. It follows that you have been sentenced in relation to a registrable offence and pursuant to s.34 of that Act you must comply and continue to comply with your reporting obligations imposed under that Act for a period of 15 years following on from your release.
I am shortly going to have handed to you a document that explains the terms of that Act and the conditions which will apply to you upon your release from prison, including the reporting of your personal details to the Chief Commissioner of Police for 15 years. There are many other obligations that you will see on that document. You will need to familiarise yourself with these provisions, as a breach of them is itself a serious criminal offence.
Ms Ljubicic, it is a very long document. It is not expected he is going to sit there and read every word of it. It is simply him acknowledging service of his reporting obligations. Are you familiar with these documents or not? Have you seen them?
MS LJUBICIC: I haven't seen them, Your Honour.
HIS HONOUR: All right, well I'll have it taken down. You can go down as well, but what we'll require is his signature indicating - merely the service of the obligations.
MS LJUBICIC: Certainly.
HIS HONOUR: Then he'll get a copy of it. I'll sign it first, then you can go down. All right, if you go down with my associate please and have that attended to please.
MS LJUBICIC: Thank you, Your Honour.
HIS HONOUR: All right, well anyway you confirm Ms Ljubicic that your client has signed that acknowledgement of his reporting obligations?
MS LJUBICIC: That's right.
HIS HONOUR: I understand he understands a fair bit of English and presumably reads it as well, but he's going to need to familiarise himself with all of the terms of the Sex Offender Registration Act requirements.
MS LJUBICIC: Absolutely.
HIS HONOUR: Yes.
MS LJUBICIC: I'll assist him.
HIS HONOUR: As I say, it's not expected he's going to do it here and now, it's a lengthy document. But it's got all sorts of matters that he has to have regard to and as I say, breach of any of those matters is a serious criminal offence. But anyway he's acknowledged receipt of the document.
MS LJUBICIC: I'll assist him with that.
HIS HONOUR: Are there any other matters that I need to deal with at all?
MR THOMPSON: No, Your Honour.
HIS HONOUR: All right. Are you going to go down and see your client downstairs Ms Ljubicic?
MS LJUBICIC: Yes I am.
HIS HONOUR: Yes, all right. Well Mr Abbas, your barrister is going to come down and see you downstairs, so Mr Abbas can be removed. Thank you for that. Yes, all right I've signed that order. So I've got a trial outstanding, I'll come back onto the Bench at about 10.30.
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[2017] VCC 991

25 July 2017