Director of Public Prosecutions v Abdel (a pseudonym)
[2022] VCC 1113
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED ABDEL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TIWANA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Trial 2-4, 7-11 February 2022; Plea 29 June 2022 |
DATE OF SENTENCE: | 21 July 2022 |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | DPP v Abdel (a pseudonym) [2022] VCC 1113 |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence
Catchwords: Rape – Guilty verdict following trial – Victim 21 year old sister – Breach of trust – No relevant criminal history – Deprived childhood – Refugee background – Family violence – Increased burden in custody – Verdins limb 5 – Objective gravity of offending towards lower end – General deterrence – Good prospects of rehabilitation – Low risk of recidivism – No evidence of remorse
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Black v The Queen [2022] VSCA 125; Bugmy v The Queen (2013) 249 CLR 571; Jurj v The Queen [2016] VSCA 57; R v Verdins (2007) 16 VR 269
Sentence: Sentenced to 4 years and 2 months’ imprisonment with a non-parole period of 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Office of Public Prosecutions |
| For the Accused | Mr N Leslie | Slink & Keating Solicitors |
HIS HONOUR:
Introduction
1Mohamed Abdel,[1] on 11 February 2022, you were convicted by a jury of one charge of rape.[2]
[1] A pseudonym.
[2]Charge 3 (Rape) – by a majority verdict (11-1). There was an alternative charge to rape, namely, sexual assault (Charge 4) which did not require a verdict.
2The jury found you not guilty on a charge of sexual assault.[3] In respect of a second charge of sexual assault,[4] the jury were unable to reach a verdict and were discharged. This charge has been discontinued by the prosecution.[5]
[3]Charge 2 (Sexual Assault).
[4]Charge 1 (Sexual Assault).
[5]By Notice of Discontinuance dated 18 February 2022 .
3The offence of rape carries a maximum penalty of 25 years’ imprisonment.[6] It is a Category 1 offence[7] and an offence to which the standard sentencing regime applies. The standard sentence is 10 years’ imprisonment.[8]
[6]Crimes Act 1958, s 38(2).
[7]Sentencing Act 1991, s 3(1).
[8]Crimes Act 1958, s 38(3).
Summary of Offending
4It now falls upon me to sentence you in respect of the offending of which you were found guilty. Originally, the plea was listed for hearing on 11 April 2022, however, no plea material had been filed. I subsequently heard the plea on 29 June 2022.
5You will be sentenced on a basis consistent with the verdict of the jury. Your counsel accepts that this means you fall to be sentenced on the evidence your victim gave at trial.
6You were born in Iraq and came to Australia in 1993. You were aged 45 at the time of the offending.
7Your victim, Zakia Abdel[9] is your sister. She was born in 1996 after you had left Iraq. She was aged 21 at the time of the offending. You had had no contact with her until she arrived in Australia in March 2013. She arrived in Australia with your parents and three other siblings. Upon arrival, they all lived with you in Melbourne. At some stage your parents and Zakia moved out. You kept in contact and visited them regularly.
[9] A pseudonym.
8Around July 2017, your parents and Zakia moved back to live with you.
9On 17 February 2018, Zakia and your mother were involved in a car accident. They both suffered injuries and were admitted to hospital. Zakia suffered a fracture to her left wrist. Her left hand and part of her arm were placed in a cast. Having spent two days in hospital, she returned home, but your mother remained in hospital.
10Back at home on 20 February 2018, you assisted your sister in the shower. You told her that you would not look. She was wearing a bra and shorts and was seated in the bath tub. You washed her back, legs, and hair, and she washed the rest of her body. It is not suggested that when you assisted your sister in the shower on this occasion it involved any impropriety. This evidence was led at trial with your consent, and it confirms the account you gave to police in your record of interview.
11On 22 February 2018, you told Zakia that you had a surprise for her. When she went into the bathroom, she saw the bath was filled with water and bubbles. There were rose petals in the bath water and on the edges of the bath along with two lit candles. You asked her if she liked it and she replied ‘Yes’. Zakia took a photo of the bath.[10] As she was in a cast, you assisted her to remove her clothing. That included removing her shorts, bra and underwear. She was now naked. You wrapped her cast with a plastic bag. You then helped her into the bath. Once in the bath, you sat on the edge of it and washed her body with a loofah. She describes moving a lot as she felt embarrassed. You told her to relax. She then felt your hand moving down towards her vagina. You rubbed her vagina up and down between the clitoris and the urethral opening with two of your fingers.[11] This act lasted for 2 to 5 seconds. She told you to ‘Get out’ and you then left the bathroom. Zakia washed herself and got out of the bath tub, and went to her bedroom.
[10]Exhibit A on the trial. This photograph was posted on snapchat by the victim.
[11]Exhibit B on the trial. With the agreement of the defence, the victim marked with a ‘x’ the areas where she was touched.
12A short while later, you went to her bedroom with insurance papers relating to the car accident. Zakia told you to ‘Get out from here’ and you left.
13The following day, she disclosed your offending to her psychologist. She was taken to Box Hill police station and the offending was reported.
14You were arrested and interviewed on 11 April 2018. You told the police that following the car accident, you assisted your sister at the hospital and at home. You said you helped her by washing her back, legs and under her arms in the shower, as set out in paragraph 10 of these reasons. She wore a bra, underwear and shorts in the shower.
15You accepted, as shown in exhibit A on the trial, making her a bath, using bubble bath, scented candles and rose petals. You told police that you stayed in the bathroom with her until she was comfortable. You said that you then left and did not assist with washing her.
Impact upon the victim
16Zakia has made a brief victim impact statement dated 3 March 2022.[12] She states that the offending remains with her and has impacted her life. She says that it has destroyed her life every day in her mind. I will take into account the ongoing impact upon her.[13]
[12]Exhibit C on the plea.
[13]I take into account the admissible parts of the victim impact statement.
Personal circumstances
17You were born in Northern Iraq and are the eldest child in a sibship of six brothers and two sisters. Your father worked as an electrician in the Iraqi army and your mother was a housewife. Your parents followed Christianity in a country dominated by Islam. Your religious beliefs led to bullying at school and persecution in the community.
18Regrettably, the violence wasn’t only external but a regular feature at home. You lacked any guidance or affectionate nurturing from your parents. Your parents subjected you and your brothers to psychological and physical abuse. They would slap you and hit you with shoes. Your father would also strike you with a piece of wood. On occasions, you were tied up by your parents with rope.
19Having left school, you were conscripted as a soldier in the Gulf War. Having experienced the trauma of war, and witnessed the death of soldiers, you left to return home. Your family offered you no support and they feared retribution as a result of your decision to leave the army. You then decided to walk to the border of Iraq and Turkey. You lived in the mountains before being taken by the United Nations to a refugee camp in Turkey. There, you lived in difficult and crowded conditions for three years. Eventually, the United Nations assisted you with your move to Australia. You arrived here in Melbourne in 1993. A church organisation provided support, organising accommodation and enrolment at TAFE where you studied English for two years.
20You have held employment over the years primarily as a cleaner. You have not worked since 2013, and are currently on a disability pension.
21You met your partner in 1997. You were together for seven years and have three children, now aged 22, 20 and 18. You separated in 2004. Around the same time, one of your brothers in Iraq was killed. In 2005, you sought counselling to deal with the trauma you were grappling with.
22You met your current partner some seven years ago. She lives in Iraq and you met online. You had plans for her to join you in Australia. However, since your remand in custody, you have had no contact with her.
Nature and gravity of the offending
23The offence of rape is a very serious one. Parliament has made that plain by fixing a maximum penalty of 25 years’ imprisonment. Parliament has also passed legislation making rape a Category 1 offence. This means a term of imprisonment must be imposed. Further, this offence attracts a standard sentence of 10 years.
24You offended against your sister in her home where she was entitled to feel safe. Your offending involved a significant breach of trust. Only a few days before the offending, she was involved in a car accident. She was happy to rely upon you to assist her to maintain her hygiene. You took advantage of her vulnerability. Rather than care for her as she expected, you abused her by committing this crime. At the time of the offending in the bath, not only was she vulnerable as a result of her injury to her wrist, she was also vulnerable by virtue of being completely naked in front of her brother. It would have been apparent to you that she was embarrassed to be washed by her brother, in circumstances where she was naked.
25As far as pre-meditation is concerned, I am not satisfied to the criminal standard that you went to the trouble to treat her to a bath in order to commit the offence of which you have been found guilty. Nevertheless, once she was in the bath completely naked, you took advantage of the opportunity by penetrating her vagina with your fingers.
26I accept your counsel’s submissions that the offending was short in duration and isolated. You immediately left the bathroom when you were told to leave. It was not accompanied by any gratuitous or further violence. There was no risk of pregnancy or transmission of any sexual diseases.[14]
[14]See Jurj v The Queen [2016] VSCA 57, [80].
27Your counsel submitted that the offending fell towards the lower end of seriousness. The prosecution took no issue with that submission. I agree that the offence of rape that you fall to be sentenced for, objectively considered, falls towards the lower end.
Sentencing considerations
28The sentence I impose must justly punish you. It must reflect the community’s abhorrence of such offending and denounce your conduct.
29General deterrence must be given prominence in the sentencing exercise. The sentence I impose must seek to deter those who may be minded to offend in a similar manner against their siblings.
30I accept that you have good prospects of rehabilitation.
Psychological Assessment
31Ms Christine Kennedy has prepared a psychological report dated 20 June 2022. It is countersigned by Mr David Ball.[15] I note the following pertinent matters addressed in the report:
(i)You are diagnosed with Post-traumatic Stress Disorder (‘PTSD’), Major Depressive Disorder and a Generalised Anxiety Disorder. These mental illnesses are likely to have stemmed from transgenerational trauma.[16]
(ii)Your PTSD is attributed primarily to your experiences in Iraq, where you were subjected to persecution because of your family’s religious beliefs, violence at the hands of your parents, witnessing the deaths of fellow soldiers in the Gulf War, and your harrowing experience in a refugee camp for three years. In around 2005, not only did your partner leave you, taking your children, but you received news of your brother being killed in the Iraq War.
(iii)You attempted suicide in 2005. You suffer from insomnia. When you do sleep, it is interrupted by nightmares relating to your childhood and current experiences.
(iv)Whilst there was no formal testing, your IQ is estimated to fall within the low average range.
(v)You impressed as someone with impairment in your capacity to plan and execute positive and self-sustaining behaviours. You live a socially isolated lifestyle.[17]
(vi)A risk assessment assesses you as being at a low risk of recidivism in respect of sexual offending.[18]
(vii)Despite your risk profile, you would be assisted by completing a sexual offender treatment program and develop an understanding of the effects of sexual abuse upon your victim.[19]
[15]Exhibit 2 on the plea.
[16]Ibid, 7 under the heading ‘Diagnosis’.
[17]Ibid, 3-4 under the heading ‘Mental Status Examination’.
[18]Ibid, 6 under the heading ‘Stable Factors’.
[19]Ibid, 7 under the heading ‘Rehabilitation and Management in the Community’.
32In addition to the psychological report, I was provided with a letter from your former treating psychologist, Sharon Kirschner dated 30 August 2021.[20] Also tendered on your behalf was a Vic West Coordination of Supports: Progress Report dated 25 July 2021,[21] Disability Services Progress Report prepared by Mr Ahmed Taha[22] and a letter from National Occupational Therapy written by Georgie Charles dated 24 November 2020.[23]
[20]Exhibit 3 on the plea.
[21]Exhibit 4 on the plea.
[22]Exhibit 5 on the plea.
[23]Exhibit 6 on the plea.
33This material lends support to the psychological assessment carried out by Ms Kennedy pertaining to your mental health and the needs in the community.
34Ms Kirschner has provided regular counselling to you over a period of 12 months. She alludes to your significant history of trauma and makes a similar mental health diagnosis as in Ms Kennedy’s report. She further alludes to the discomfort caused by your chronic back pain which confounds your insomnia and mental health. She stresses your social isolation and lack of support system outside of your support workers.
Matters in Mitigation
35You were convicted following a trial. You were entitled to contest the matter. However, it means that I am not able to give you any discount attached to a plea of guilty. There is no evidence you are remorseful.[24]
[24]The fact you didn’t plead guilty and have not shown any remorse simply deprives you of a mitigating factor.
36You counsel provided the Court with written submissions.[25]
[25]Exhibit 1 on the plea.
37I accept that there are a number of matters pertaining to your background which allow me to mitigate the sentence I will impose. The prosecution took no issue with the matters raised in mitigation.
38You are now aged 49. You are effectively a man of good character.[26] The offending occurred over four years ago. You have not been in any further trouble and there are no pending matters.
[26]There is one prior matter, Breaching an Intervention Order, for which he received a fine without conviction in 2006.
39I accept that you have endured a very traumatic and disadvantaged background in Iraq. The trauma you have suffered has led to a number of mental health issues with which you continue to grapple. I accept that your background allows me to moderate your moral culpability. In that regard, I was referred by your counsel to the recent Court of Appeal decision of Black v The Queen,[27] in which the court reiterated the well-established Bugmy[28] principles.
[27][2022] VSCA 125 (Forrest and Emerton JJA).
[28]Bugmy v The Queen (2013) 249 CLR 571.
40You have been in custody since 11 February 2022. I accept that your time in custody has been and will continue to be burdensome. I take into account the following matters:
(i)This is your first time in custody.
(ii)As a result of your mental health issues, I accept that imprisonment will weigh more heavily upon you than it would on a person with normal health.[29]
(iii)You suffer from chronic back pain and insomnia. The back pain, as already noted, confounds your insomnia and mental health.
(iv)You are socially isolated. Your immediate and extended family have maintained no contact with you following your remand in custody. I note that your partner in Iraq is unaware of the offending and you have maintained no contact with her. It is likely that you will serve your sentence with no visits from any friends and family to look forward to.
(v)The nature of the offending has resulted in threats of physical harm when you were at Port Philip Prison.
(vi)The COVID-19 pandemic has meant that you have until now, undertaken no meaningful courses or undergone any counselling whilst in custody. You have endured two periods of isolation, each lasting 14 days; first upon reception, and then when you moved to your current location. You have also endured other periods of lockdown and they are likely to be ongoing.
[29]R v Verdins (2007) 16 VR 269, limb 5.
41Having regard to the combined effect of the above factors, your time in custody will be particularly onerous.
Standard Sentence
42Sentencing requires taking into account a multitude of different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘The sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[30]
[30] Sentencing Act 1991, s 5A(b).
43The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.
44The Court must only have regard to sentences imposed in cases where the standard sentence regime applied. I have had regard to the standard sentencing cases referred to me by the prosecution, and discussed during the plea hearing.[31] Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the Court is required to consider. Each case ultimately turns on its own particular facts and circumstances.
[31]45The sentence on the charge of rape will be lower than the standard sentence. This is in order to reflect the lower objective gravity of the offending as articulated in these reasons. I conclude, as submitted by both counsel, the objective gravity falls towards the lower end. I further pay regard to your difficult personal circumstances and the impact that custody will have upon you.
46For completeness, I note that the reporting requirements under the Sex Offenders Registration Act 2004 are discretionary. Quite sensibly, no submission was made by the prosecution that I should consider registration.
Sentencing
47Having taken into consideration all relevant sentencing factors and principles, Mr Abdel you are sentenced as follows:
48On Charge 3, rape, you are convicted and sentenced to 4 years and 2 months’ imprisonment.
49I set a non-parole period of 2 years and 6 months’ imprisonment.[32]
[32]Section 11(4) of the Sentencing Act 1991 requires the fixing of a non-parole period of at least 60 per cent of the head sentence unless I consider that it is in the interests of justice not to do so.
Pre-sentence Detention
50Pursuant to s 18 of the Sentencing Act 1991, the period of 160 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
DDP v Clarke [2022] VSCA 89; DPP v Prodanovich [2019] VCC 1730; Nachar v The Queen [2021]
VSCA 242.
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