Director of Public Prosecutions v Abdullah
[2024] VCC 979
•19 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-02120
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Salmanul ABDULLAH |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2024 | |
DATE OF SENTENCE: | 19 July 2024 | |
CASE MAY BE CITED AS: | DPP v Abdullah | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 979 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual penetration of a child under 12 years (rolled up) (Charge 1) – Sexual assault of a child under 16 years (rolled up) (Charge 2) – Encouraging a child under 16 years to engage in or be involved in sexual activity (rolled up) (Charge 3) – summary charge of contravening a condition of bail – summary charge of committing indictable offence whilst on bail
Legislation Cited: Crimes Act 1958; Migration Act 1958 (Cth); Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:R v Sheriff Unreported, 19 March 1998; R v Schubert [1999] VSCA 25; R v Brown [2002] VSCA 207; Adamson v The Queen [2015] VSCA 194; Nuramin and Rahamutallah Rahamutallah v The King [2024] VSCA 117
Sentence: Total effective sentence of 8 years and 11 months with a non-parole period of 5 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Martin | Office of Public Prosecutions |
| For the Accused | Mr T Sullivan | Marshall Jovanovska Ralph Criminal Lawyers |
HER HONOUR:
1Salmanul Abdullah, you have pleaded guilty to one rolled up charge of sexual penetration of a child under 12 years contrary to section 49A(1) of the Crimes Act 1958 (charge 1), which carries a maximum sentence of 25 years’ imprisonment; one rolled up charge of sexual assault of a child under 16 years contrary to section 49D(1) of the Crimes Act 1958 (charge 2), which carries a maximum sentence of 10 years’ imprisonment; and one rolled up charge of encouraging a child under 16 years to engage in or be involved in sexual activity contrary to section 49K(1) of the Crimes Act 1958 (charge 3), which carries a maximum sentence of 10 years’ imprisonment.
2In addition, you have consented to the uplifting of Summary charges 3 (contravene a conduct condition of bail) and 9 (commit an indictable offence while on bail), and you have pleaded guilty to these summary offences. Each of these offences carries a maximum sentence of three months’ imprisonment or 30 penalty units. At the time of the offending, you were to subject to bail conditions which prevented you from attending the Footscray CBD. By attending Footscray train station on 21 July 2022, you contravened that condition. In addition, your offending against the victim occurred while you were on bail.
3In sentencing you, I have taken into account all of the material tendered at the plea hearing[1] as well as today, along with the oral submissions made by counsel.
[1] Summary of Prosecution Opening for Plea, dated 7 May 2024, Prosecution Plea Submissions dated 13 June 2024, Report of Dr Thea Bloom dated 31 July 2022, Defence Plea Submissions dated 6 June 2024, Report of Warren Simmons dated 19 April 2024.
Circumstances of Offending
4The details of your offending are set out in the Summary of Prosecution Opening for Plea,[2] and I sentence you on the basis of the facts set out in that document. I summarise those facts here.
[2] Dated 7 May 2024, Exhibit 1.
5You were born on 30 October 1990 and are currently aged 33 years. You were 31 years of age at the time of the offending, and you lived in a boarding house.
6The victim is 13 years old. At times she has used a male name. At the time of the offending she was 11 years old, using a male name, and living in residential care.
7On 21 July 2022, you met the victim at a bus stop in Footscray at approximately 11.55am. The victim had travelled there on the train and told you that she had run away from home. You asked the victim her age because she looked young and she told you she was 16 years old.
8You invited the victim back to your home in North Melbourne and she travelled there with you by train. When you arrived, you asked the victim whether she was a boy or a girl and she said she was a girl. You told her to prove it, and she pulled up her top and exposed her bra to you. This is the first incident in rolled-up charge 3, encouraging a child under 16 to engage in or be involved in sexual activity. You then suggested taking a shower with her. When you were both in the shower, she saw that you had a “boner” and got out of the shower. You asked her to get back in with you. Initially, she refused, but she was frightened so she complied. This is the second incident in rolled-up charge 3.
9After the shower, you and the victim went to your bedroom where you shared a bottle of wine. The victim drank about a quarter of the bottle and you drank the rest of the bottle. You gave the victim a jumper to wear.
10You then showed the victim pornography on your mobile phone which she described as “pussy eating”. This conduct forms part of rolled-up charge 3.
11As you watched the pornography, you asked the victim: “Do you want me to do that to you?” and she replied: “I don’t want to”. However, you licked the outside of her vagina. This forms part of rolled up charge 2, sexual assault of a child under 16.
12You then told the victim: “You can suck my penis if you want”. The victim replied: “I don’t want to”. You tried to convince the victim to suck your penis by saying that it would be fun and the victim then agreed, saying, “all right”. You inserted your penis into the victim’s mouth and ejaculated. This conduct forms part of rolled up charge 1, sexual penetration of a child under 12. While the victim was in your bedroom, you also inserted your finger into her vagina. This conduct also forms part of rolled-up charge 1.
13You also rubbed your penis across the outside of the victim’s vagina. This conduct forms part of rolled-up charge 2.
14The victim then pushed you away, got dressed and ran out of the house at approximately 1.45pm. She ran across the street to an ambulance which was parked nearby, yelling, “Help, help, I just got raped.” The ambulance officers placed the victim in the ambulance and called the police.
15A short time later, you came out of your house and the victim identified you to the ambulance officers. They and two other men kept you at the scene until the police arrived at approximately 2.03pm and you were then arrested. You denied ‘raping’ the victim.
Investigation
16The victim was taken to the Royal Children’s Hospital where a forensic medical examination was conducted. During her assessment, she refused to discuss the details of your offending but stated that you had kissed her right breast. A number of forensic samples were taken from the victim, including samples from the right upper breast, vulva, low and high vagina. When subjected to DNA analysis, possible saliva was detected on the swabs taken from the victim’s right breast and the results produced a likelihood ratio of 100 billion that the source of the saliva is yours.
17Forensic samples were also taken from you. In the forensic samples taken from the shaft and coronal sulcus of your penis, a secondary source of DNA was detected on the swabs and the results produced a likelihood ratio of 100 billion that the victim is the source of the DNA.
18During the investigation, CCTV footage was obtained from the Melbourne Metro Railway Network and was viewed by police. The footage showed you with the victim at a train station at 11.55am, boarding a train together at 12.00pm, and arriving at another station together at 12.20pm.
19CCTV footage was also obtained from outside your address which showed the victim being attended to by paramedics and you being subjected to a citizen’s arrest by ambulance officers and others.
20The evening after your arrest, a search warrant was executed at your address and police located the clothing that the victim had been wearing when travelling with you by train, as well as the clothing you were wearing at the time. Police also located the victim’s fingerprint on an unopened bottle of wine in your bedroom.
21Following your arrest, you participated in a taped Record of Interview with the assistance of an interpreter. You denied the alleged offending. You told police that the victim had approached you at the bus stop, using a male name and claiming to be homeless. The victim asked you for money. The victim looked very young to you and she told you that she was 16 years old. You agreed that you shared a bottle of wine with the victim at your residence, but denied that the victim showered there.
22You stated that the victim told you she had previously had sexual intercourse with other people. You said that you invited the victim to stay at your home overnight because you were too drunk and high to take the victim to St Kilda. You stated that you went to sleep on the floor whilst the victim slept on your mattress but when you woke up, the victim was gone. You denied touching the victim.
23The victim participated in a VARE statement with the assistance of an intermediary, and detailed the allegations outlined above.
Plea of guilty
24At the Committal Mention on 11 November 2022, you entered a plea of guilty to the offences which are on the current Plea Indictment, as well as to the two Summary charges outlined above.
25The matter was listed for a plea hearing but was subsequently adjourned on 19 May 2023 when you indicated that you wished to change your plea to one of not guilty. The matter then proceeded down the trial pathway and the victim was cross-examined by counsel at a Special Hearing on 15 March 2024. Apart from at the Special Hearing, you were unrepresented. You then obtained legal representation and the trial was listed to commence on 17 June 2024.
26Prior to trial, however, on 6 May 2024, the matter resolved on the same basis as the previously filed Plea Indictment (that is, on the same basis as the initial resolution in November 2022) and you were arraigned on 7 May 2024.
Prior Convictions
27You have prior convictions for committing indictable offences whilst on bail (November 2020; January 2021; August 2021; March 2021) and for contravening conduct conditions of bail (March 2022) but no relevant prior convictions for the current indictable offences.
Pre-sentence Detention (PSD)
28You were remanded into custody following your arrest on 21 July 2022 and you have spent 729 days in custody by way of pre-sentence detention, not including today.
Victim Impact Statement
29A Victim Impact Statement by the victim[3] and her mother[4] were filed after the conclusion of the plea hearing. The victim’s impact statement was read out in Court by the prosecutor today. The victim said that since your offending, she has seen her body as disgusting and no longer feels safe around most men or walking alone. She has attempted suicide four times. She said that you took her innocence, made her feel small and made her feel like your behaviour was her fault. She is now 13 but remembers the offending like it was yesterday and says that your face will forever be in her head. Your offending has had a big toll on her life because even though she wants to live her life, she will not be able to trust another man again, even if she gets married.
The victim’s mother stated that since your offending her daughter has been bedwetting, missing school, and taking marijuana to numb her distress. It has been difficult to build trust with her daughter, and to avoid overprotecting her while worrying that she will self-harm.
[3] Dated 16 July 2024, Exhibit 4.
[4] Dated 16 July 2024, Exhibit 5.
Personal circumstances
30Your personal circumstances were outlined in the psychological report of Warren Simmons dated 19 April 2024.[5]
[5] Exhibit B.
31You are 33 years old and were born and raised in Malaysia in a middle class family with three sisters. Your parents often disciplined you physically but did not do this to your sisters. You felt that they loved your sisters more than you, and you spent most of your time next door with your grandmother, playing video games. From the age of 9 you knew you were gay and for a few years from the age of 14 you engaged in sexual activity with a much older man. You received some sex education at the age of 16. You did not do well at school and left after Year 11. By then you had started smoking and drinking. After school you worked as a waiter. You then moved to Malacca. You came to Australia in 2016, where you worked as a grape picker, cleaner and delivery driver. You abused alcohol and cannabis and then synthetic cannabis, which made you hallucinate. You became homeless in 2017 and then found accommodation with a much older Vietnamese man, with whom you lived until your first arrest for an unrelated matter. After obtaining bail in relation to that unrelated matter, you worked at a car wash and lived with your employer until you were remanded for this offending.
32Mr Simmons considered that at the time of remand, you suffered from Alcohol and Cannabis Use Disorders and that you were self-medicating with drugs and alcohol to manage your emotional state, which has led to periods of unemployment and homelessness. He noted that there appears to be a history of depressive symptoms and that you have made five attempts at self-harm while in custody, which has resulted in your remaining at the Melbourne Assessment Prison.[6] He noted that as at April 2024 you were also in protection due to threats being made against you. Mr Simmons concluded that your time in custody will be more onerous on you due to your mental state and self-harming behaviours, and due to the isolation that will accompany time in protective custody. In addition, there is the anxiety you experience about being deported to Malaysia.[7]
[6] Report of Warren Simmons dated 19 April 2024, 6 [29].
[7] As per s 501(3A) of the Migration Act 1958 (Cth).
Prosecution submissions
33The prosecution submitted that your offending is objectively very serious, at least at the mid-level of seriousness for offending of this type, and that your moral culpability for the offending is high. The prosecution submitted that there was no evidence that your drug and alcohol intoxication was causally related to the offending. The prosecution conceded the utility of your relatively late plea of guilty (on the same basis as the initial resolution in November 2022, but after the victim had been cross-examined at a Special Hearing) but noted your denial of the offending in your Record of Interview. In addition, it was submitted there was no evidence of remorse.
34Apart from your plea and lack of criminal history for similar offending, it was submitted that there are no mitigating factors of significance. In particular, the prosecution submitted that on a plea of guilty to the sexual offending against an 11 year-old child, the issue of consent or indeed of ‘entrapment’ does not arise. In addition, the prosecution rejected your counsel’s assertion that your offending did not cause great harm to the victim because she had already been the subject of chronic sexual abuse in her childhood. The prosecution submitted that this assertion should be rejected as it is contrary to the authorities which presume that premature sexual activity results in long term psychological harm for children and the degree of that harm varies according to the objective gravity of the offending.[8]
[8] Adamson v The Queen [2015] VSCA 194 at [20].
35The prosecution submitted that in light of the seriousness of your offending, denunciation, just punishment, specific and general deterrence are paramount sentencing considerations. For these reasons, it was submitted that the only appropriate disposition is one of the imposition of a term of imprisonment and a non-parole period.
Defence submissions
36Your counsel conceded that the offending is inherently serious, and that the only appropriate disposition is one of the imposition of a term of imprisonment and a non-parole period.
37However, he submitted that your level of offending, compared with that involved in the case of Mohammed Nuramin and Rahamutallah Rahamutallah v The King[9] is “well below the mid-level” of seriousness and warrants a total effective sentence “at, or very close to, single digits”, with the “presumed minimum non-parole period.”[10]
[9] [2024] VSCA 117.
[10] Defence Plea Submissions dated 6 June 2024, 6 [32]-[35].
38He relied on a number of factors which he asserted were mitigatory. First, that your offending was unplanned. Second, that you took the victim to your accommodation out of altruism, aiming to help her to find accommodation.[11] Third, that the offending occurred when you were self-medicated with alcohol and drugs and living on the fringe of society in a foreign country and that your offending was causally connected to your intoxication. Fourth, that the victim “entrapped” you.[12] Fifth, that against the victim’s own background of deprivation, chronic sexual abuse within her family and periods in care as documented in the forensic paediatric medical report of Dr Thea Bloom[13] your offending is to be regarded as having caused her relatively less harm. Sixth, he relied on the utilitarian value of your plea, and the remorse inherent in that plea. He submitted that your delay in making the plea was caused in part by your difficulty in understanding the different ages in the offences (i.e. “child under sixteen” and “child under twelve”) charged against you.
[11] See answer 124 of p 353 of the Depositions.
[12] This assertion was based on the fact that less than a fortnight before this offending, the victim had made complaints of similar offending, in similar circumstances, against another offender, who was ultimately acquitted at trial.
[13] Dated 31 July 2022, Exhibit 3.
39Finally, he relied on the hardship you have to date suffered and will continue to suffer in prison. Mr Simmons noted that you feel hopeless and that you have self-harmed on five occasions thus far. For this reason you have been kept at the Melbourne Assessment Prison. In addition, due to bullying by other prisoners, you are being kept in protection. Further, the nature of your protection and isolation will be a significant additional burden as you have no family or other support here. You are also anxious about your future and the prospect of deportation to Malaysia at the completion of your sentence and at the loss of your opportunity to remain in Australia. Your counsel also relied on the fact that you served the first half of your pre-sentence detention in conditions affected by COVID-19 considerations.
Analysis
40The purposes of sentencing include denunciation, just punishment, general and specific deterrence, protection of the community and rehabilitation of offenders. Where there are multiple offences, the total effective sentence must not offend the principle of totality. In addition, the court must apply the principles of proportionality and parsimony.
41The seriousness of your offending in relation to charge 1 is reflected in the maximum sentence of 25 years’ imprisonment for the sexual penetration of a child under 12, with a standard sentence of 10 years, and the requirement to impose a custodial sentence. The seriousness of your offending in relation to charge 2 is similarly reflected in the maximum sentence of 10 years on the sexual assault of a child under 16, with a standard sentence of four years, and in relation to charge 3, in the maximum sentence of 10 years. I also note that pursuant to section 6F of the Sentencing Act 1991, you stand to be sentenced as a serious sexual offender on charge 3, which imposes a statutory presumption of cumulation pursuant section 6E and requires the Court to consider protection of the community as the principal sentencing purpose pursuant to section 6D. Having said that, the Director does not call for a disproportionate sentence to achieve these ends, and the overarching principle of totality therefore continues to apply.
42The court is also to have regard to current sentencing practice, to the impact of your offending on the victim, and to your personal circumstances in reaching an appropriate sentence which is just in all of the circumstances.
Objective gravity of the offending
43I consider that the following factors tend to the conclusion I have reached that your offending in relation to charges 1 and 2, while less serious than that of the offenders in Mohammed Nuramin and Rahamutallah Rahamutallah, is nonetheless objectively very serious, and close to the mid-level of objective level of seriousness, rather than “well-below the mid-level” as contended by your counsel.
44First, there was a significant disparity in age between you – aged 31 – and the victim, who had just turned 11 one month prior to your offending.
45Second, you admitted that the victim looked very young to you. This is consistent with your plea of guilty, by which you accept the element of the offences relating to the age of the victim.
46Third, you took advantage of the victim’s young age and homelessness by offering her accommodation and taking her back to your home. Given how soon after arriving at your home you committed the acts which are the subject of charges 2 and 3, it was clear that your motivation was not altruistic (as your counsel submitted), and that your intention was to engage in sexual activity with her.
47Fourth, even though all of the offending occurred in a fairly short period of time on one day, each of the charges is a rolled-up charge: charges 1 and 2 involving two specific instances of offending; and charge 3 involving three instances of offending.
48Fifth, you supplied the very young victim with alcohol during the offending.
49Sixth, the acts of sexual penetration with your penis and finger, which are the subject of charge 1, are inherently serious, and not less serious by virtue of the fact that in one of those incidents the penis was not involved.[14] The acts of sexual touching were also serious examples of this offence, as they involved sexual touching of the victim’s genitalia.
[14] See R v Brown [2002] VSCA 207 at [57], approving the court’s previously held positions in R v Schubert [1999] VSCA 25 at [11] and [19] and R v Sheriff Unreported, 19 March 1998 at [12].
50Seventh, at the time of the offending the victim was scared[15] and this is relevant to the Court’s assessment of the impact of the offending on her at the time.
[15] See VARE Q&A 20.
51Finally, it is clear from the Victim Impact Statement that your offending has had a significant impact on her, and that it will continue to impact her for the rest of her life.
Moral Culpability
52Given your plea of guilty to offences against a child, where consent is not an element, I consider that the claim of entrapment simply does not arise and does not therefore reduce your moral culpability for your offending.
53In the light of the victim impact statement of the victim, and the authorities[16] to the effect that you are to be sentenced on the basis that premature sexual activity is presumed to result in long-term psychological harm for children, I find that your offending has had a significant adverse impact on the victim.
[16]Adamson, above n 8.
54Finally, I reject the submission that your moral culpability is reduced by the fact that you were intoxicated at the time of offending due to a combination of alcohol and synthetic marijuana, as there was no evidence before me of any causal link between any such alleged intoxication and your offending.
55For these reasons, I consider that your moral culpability for the offending is high.
Impact of imprisonment
56I accept the evidence of extensive self-harm whilst you have been in prison. I consider that your time in prison will be more onerous for you than for other prisoners not suffering your mental health condition because you have spent the first half of your period on remand in more onerous COVID-19 related conditions; have attempted self-harm on numerous occasions and require separate accommodation, medication and monitoring for the risk of self-harm; are being kept in protection to avoid bullying flowing from the nature of your offending; will have no support from family or others; and face the prospects of deportation upon completion of your sentence. I have taken these matters into account in moderating your sentence (the total effective sentence as well as the non-parole period).
Other factors in mitigation
57I take into account that you have no relevant prior convictions. I accept that your plea of guilty, although coming after the cross-examination of the victim at the Special Hearing, has some utilitarian value and indicates that you take responsibility for your offending. However, I do not consider that you have shown any additional remorse for your offending against a young child, nor indeed any insight into the gravity of it. I consider that your prospects of rehabilitation are guarded.
Conclusion
58I consider that denunciation, just punishment, specific and general deterrence and protection of the community are prominent sentencing principles in your case. You bear high culpability for this serious offending, and, given your lack of insight into its gravity, your prospects of rehabilitation are guarded. However, in imposing sentence, I have taken into account your lack of relevant prior convictions, your plea of guilty, the deleterious impact of imprisonment upon you given your mental health issues, protection issues and your anxiety about the risk of deportation. I have also taken into account the principles of totality and parsimony when determining the extent of cumulation between the sentences imposed on each charge.
Sentence
59You are sentenced as follows. Would you please stand.
60On charge 1, sexual penetration of a child under 12, you are sentenced to 8 years’ imprisonment. This is the base sentence.
61On charge 2, sexual assault of a child under 16, you are sentenced to 18 months’ imprisonment. I direct that 6 months of the sentence imposed on charge 2 is to be served cumulatively upon the base sentence.
62On charge 3, encouraging a child under the age of 16 to engage in or be involved in sexual activity, upon which you are to be sentenced as a serious sex offender, you are sentenced to 8 months’ imprisonment. Applying the principles of parsimony and totality, I consider it inappropriate to apply the presumption of total cumulation, and instead I direct that 4 months of the sentence imposed on charge 3 be served cumulatively upon the base sentence.
63On summary charge 3, you are sentenced to 1 months’ imprisonment, to be served concurrently with the base sentence.
64On summary charge 9, you are sentenced to 3 months’ imprisonment. I direct that 1 month of the sentence imposed on charge 9 is to be served cumulatively upon the base sentence.
65The total effective sentence is one of 8 years and 11 months with a non-parole period of 5 years and 4 months.
66I declare that there are 729 days of pre-sentence detention, not including today, which are to be deducted administratively from this sentence.
67Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to the above charges, I would have imposed a sentence of 12 years with a non-parole period of 9 years.
68As indicated above, you are a registrable offender as defined in the Sex Offenders Registration Act 2004 and must comply with the reporting obligations in that Act for 15 years.[17] I order that the declaration that you are a registrable offender as defined in that Act be entered into the Court’s records.
[17] Sex Offenders Registration Act 2004 (Vic) s 34(1)(b)(i). See also ss 5(1), 34(3)(a) and 34(3)(b).
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