Director of Public Prosecutions v Ali
[2019] VCC 49
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02476
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ALI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2019 | |
DATE OF SENTENCE: | 1 February 2019 | |
CASE MAY BE CITED AS: | DPP v Ali | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 49 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of aggravated burglary and one charge of indecent assault
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence 6 years’ and 4 months imprisonment with a non-parole period of 4 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | Office of the Director of Public Prosecutions |
| For the Accused | Mr D Sala | Victoria Legal Aid |
HER HONOUR:
1 Mark Ali, following a trial, a jury convicted you on 21 November 2018 of one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of indecent assault, which carries a maximum penalty of 10 years’ imprisonment.
2 The offending of which the jury found you guilty occurred on 29 April 2009 in the very early hours of the morning. The victim of your offending was a 21 year old woman who was alone in a house where she was living at 332 Barkly Street, Brunswick. She was in her bedroom and, shortly before midnight, heard some noise outside the window and texted a friend that she was frightened. The door of the bedroom was locked. Shortly after midnight on the morning of 29 April 2009, your victim heard what she believed was a knock on the front door of the house. She got out of bed to see what was happening and, as she unlocked the bedroom door, she was confronted by a man whom the jury have found to be you. You were naked from the waist down and wearing a dark top with a hood and holding a pillow that you pushed towards your victim’s face. She screamed and managed to close the door and you stated, “I want choof” and then barged through the door. She backed away as you approached her, still holding the pillow up high. She fell backwards on the floor and you then straddled her and lowered your body and went to sit on her face. You were not wearing any pants or underwear and your penis was about a ruler’s length from her face. She told the jury she thought that you were going to rape her. She stated that you were a bit unsteady and she managed to get away and she ran from the house screaming, all the way to Barkly Square, where she ultimately spoke to a security officer and told him that she had been attacked.
3 Prior to your victim hearing noises outside her window, two young women who were sisters, and who lived at 326 Barkly Street, two doors down from your victim, had become aware of a disturbance outside their bedroom window. They thought it sounded like a male grunting and, when they looked out the window, they believed they saw the back of a person crouched down. When they later went outside to investigate, they found that items on the front porch had been moved. In particular, outside their bedroom window they found that two pillows from a couch had been placed on the ground and then two smaller pillows placed on top. Investigating police took a swab of biological material from their bedroom window and divided the sample into two fractions, one of which contained heavier cells and from which a partial single source DNA profile was extracted. The expert evidence of the forensic scientist, Mr Gellatly, was that it was 280,000 times more likely that you were the source of that DNA than that you were not the source. The other fraction of the sample was analysed and the expert evidence of Mr Gellatly was that you were 100 billion times more likely to be the source of that DNA than not the source.
4 In addition, there were four samples of DNA taken from the pillow case of the pillow said to have been used by you at the time of offending. All samples showed a mixed DNA profile from at least four contributors, of which three were other residents of 332 Barkly Street. The first sample from the middle section of the upper surface of the pillow was said by Mr Gellatly to be 59,000 times more likely to have come from you as a contributor than if you were not. The second sample from the middle section of the lower surface of the pillow case was said to be 100 billion times more likely if you were a contributor to the DNA than if you were not. The third sample taken from the end of the pillow case was said to yield a statistical analysis of 8.6 billion times more likely if you were the contributor than if you were not. The final sample taken from the floral end of the pillow case was said to yield a likelihood ratio of 100 billion times more likely if you were a contributor than if you were not.
5 The prosecution case against you was heavily reliant upon the DNA evidence. Your victim had given a description of the offender to police. She had also given instructions to enable a “photofit” image to be produced. Neither of these matched your appearance. Your victim had stated that when she opened her bedroom door, she probably saw the offender for only 3 or 4 seconds[1] and, after she ran from the house, at some stage she turned around and saw a man in Barkly Street who yelled out to her to stop and wanted her to come back. She did not know if it was the same man who had been in her house, and she kept running.[2] Under cross-examination she stated that she had trouble that night remembering the details of her assailant.[3] She said the lamp in her bedroom where the assault occurred was mood lighting, like a candle lit dinner and not very bright and at the time that she had made the statement to police, she was frazzled and in shock. She said that she felt terrified during the odeal in her bedroom and had never again been back to that house.[4]
[1]Transcript (“T”) 19
[2]T 25
[3]T 35, L28-29
[4]T 40
6 There was evidence called from David Hodges, a resident at 330 Barkly Street, who stated that, at about 12:25am, he had been awoken by a loud crash next door and then heard a call for help and screaming. He then observed your victim run from between his and her house to the other side of the street. He called out to your victim and asked her to come back towards him. She momentarily turned towards him, but she was highly distressed and took off.
7 The security guard, Mr Manuel Michalas, at Barkly Square Shopping Centre, stated that, when he saw your victim, she was waving her arms towards him and was crying and was “just hysterical”.[5]
[5]T 123 – 124
8 Evidence was called by the prosecution from Donald Thompson, a Professor of Psychology at Deakin University, who has been involved in extensive research concerning memory since 1967. He gave evidence to the jury that, if at any of the critical stages of memory, namely, perception, storage or retrieval, there is a disruption by such matters as trauma, then the memory process can be corrupted and there may be unconscious transference. This means that, although a person sees someone, they may, because of the traumatic disruption at the time, mistakenly attribute that person’s description to someone else. The Crown’s thesis was that your victim had mistakenly described and given instructions for a photofit image resembling the next door neighbour, David Hodges, whom she saw as she was fleeing, rather than, her assailant.
9 You were not interviewed by police until 18 October 2012. This occurred in circumstances where a DNA sample had been taken from you earlier that year. You participated in a record of interview on 18 October 2012 and effectively exercised your right to silence, which is your legal entitlement. You were charged with the offences and on 18 April 2013 you were committed to stand trial. On 17 February 2014, your victim’s evidence was pre-recorded. However, the state of the DNA evidence was problematic. On 13 October 2014, Mr Gellatly indicated that, at that stage, given that there were four possible contributors to the DNA on the pillow, it was not possible for him to provide statistical calculations as to likelihood ratios. Accordingly, on 31 October 2014, a notice of discontinuance of the proceedings was filed by the prosecution. However, subsequently, on 30 June 2017, Mr Gellatly provided a further report giving statistical calculations based upon the advance in DNA analysis techniques which had occurred in the interim. Accordingly, on 9 October 2017, a direct indictment was signed. There was some delay due to you failing to appear and the need for warrants to issue. However, ultimately, the matter was listed for trial on 14 November 2018.
10 The defence run by you at trial was the issue of identity. You did not give evidence, as is your legal entitlement. As previously stated, the jury verdicts of guilty were returned on 21 November 2018.
11 You are presently aged 38 years, having been born on 15 December 1980. You come before the Court with an extensive criminal history dating back to 1998 when you were 18 years old. You have many prior convictions for dishonesty offences such as burglary, theft and being unlawfully on the premises, as well as drug offences relating to use and possession of both cannabis and amphetamine. Over the years, you have been given without-conviction good behaviour bonds, community-based orders (which you have breached), a sentence in a youth training centre, wholly suspended sentences of imprisonment (which you have breached) and immediate custodial sentences of imprisonment.
12 Your personal history was detailed by your counsel, Mr Sala. You grew up in a dysfunctional household where you were one of 11 children and subject to bullying in the home from your father and older brothers. Ultimately, you left school at age 15 without completing Year 10. I accept that, with a lack of family guidance and support, you have fended for yourself since a young age and mixed with other young people who were drug users and who came into contact with the criminal justice system. In sentencing you, I take into account your background of disadvantage. I accept that your criminal history is largely related to a long term abuse of drugs in that you committed dishonesty offences in order to fund your drug habit.
13 Mr Sala urged the Court to note that you did not have any prior or subsequent sexual offending and that this offending came at a time when the relationship with your wife was severely stressed due to your drug abuse and you were being denied access to your child. Subsequent to this offending, you have come before the Court for more dishonesty offences and possession of amphetamine and served several sentences of imprisonment. However, Mr Sala stated that, since you were last released from custody on 5 January 2015, you have not committed any further offences. He stated that, prior to your release on parole on 5 January 2015, you had spent some 11 months in custody reflecting on the mess that you had made of your life and were anxious to again be able to see your son (who is now aged six years). Mr Sala stated that you had not undergone any formal drug rehabilitation but had determined to try to turn your life around. He submitted that, given your significant history of past offending, it is of some moment that you have not reoffended in the last four years. Mr Sala urged the Court to take into account the significant delay between the commission of the offences in 2009 and your ultimately being found guilty of them and sentenced over nine years later. He urged the Court to regard the delay as a relevant factor in that it had enabled you to remain drug-free in the last four years and demonstrate a commitment to rehabilitation. Mr Sala stated that you had succeeded in rehabilitating the fraught relationship with your wife and, although you remain separated, your dealings with each other are civilised and you have been permitted to see your son three times a week and take him to school and this connection has been very important for you.
14 Mr Ali, you should be in no doubt about the seriousness of this offending. To invade a person’s home at night in the way that you did is a very grave infringement of the right of every citizen to feel safe in their own home. I am left in no doubt that this was a terrifying ordeal for your young female victim who was alone and deeply shocked to open her bedroom door to find a man in a black hoodie and naked from the waist down, who had broken into her home. The sexual assault which you then committed was of an unsavoury and humiliating kind, which has understandably had a deeply disturbing effect upon your startled and frightened victim. Her evidence in the trial about her being so terrified that she never again returned to the house where the assault occurred speaks for itself, as does the extreme distress witnessed by Mr Hodges and the hysterical and tearful behaviour witnessed by Mr Michalas.
15 In a Victim Impact Statement tendered as Exhibit “B”, you victim describes that she was unable to work in any significant capacity for about four years after your criminal offending. She struggled to hold down a job, was unable to sleep at night and could not catch public transport because she was afraid of men. She has suffered from very distressing hypervigilance when she hears noises at night and is overcome by panic at times when the doorbell rings, so that she will never answer the door if it is unexpected. Her frightened overreactions to everyday situations have had an adverse effect upon her and her family.
16 Appended to the Victim Impact Statement was a letter from her general practitioner dated 22 January 2019, stating that he has been her long-term family general practitioner and, since your offending 10 years ago, your victim has had issues with stress and insomnia and required intermittent therapy to alleviate the symptoms which he attributes directly to your offending. These are all understandable consequences of your appalling and frightening offending from which all members of the community should be entitled to be protected.
17 The seriousness of the offence of aggravated burglary is indicated by the maximum penalty of 25 years’ imprisonment assigned to it by Parliament. The seriousness of sexual assault is also reflected by the maximum penalty of 10 years assigned to it. Your home invasion and terrifying attack upon a young woman alone in the sanctity of her bedroom at night represents a serious example of each of the offences. It is fortunate that your victim’s ordeal was not protracted due to her fleeing from you at the first available opportunity. In sentencing for such offending, the Court must denounce your conduct and place emphasis upon general deterrence so that others who are minded to aggressively invade the sanctuary of others and terrify them in the way that you did, will know that they will meet with appropriate punishment. It is imperative that the community be protected from this deeply unsettling, anti-social conduct and that victims should feel vindicated.
18 There has been very little material put before the Court on your behalf except for the general submissions made by your counsel which have been tendered for identification. No psychological report was put before the Court, although I do note that when His Honour Judge Ryan sentenced you on 13 June 2014, he had a psychological report authored by Ms Carla Lechner. His Honour accepted that your low intellect made you unable to deal with the stressors which were confronting you at the time you offended in 2013, such that you relapsed into drug use and offending. He considered it appropriate, in these circumstances, to moderate the principle of general deterrence. However, he also found that the community must be protected, and he considered that you had limited prospects of rehabilitation. It would seem that, at the time of the offending for which I must sentence you, your relationship with your wife was also in a state of crisis and you were being denied access to your child. As a matter of fairness, I consider I should take your low intellect and capacity to cope with such stressors into account in a limited way, just as His Honour Judge Ryan did.
19 Mr Sala has urged the Court to note that you have not committed any further offences since you were released from custody four years ago. It is to your credit that you have not come to the notice of law enforcement authorities in that four year period and, in that sense, I take into account that it appears that the delay in this matter coming before the Court has, in part, been used by you to rehabilitate yourself. However, there was no material put before the Court, other than your lack of offending, to support such rehabilitation. It was said by your counsel that you had not undergone any drug rehabilitation program. It is significant that you have remained free of offending for a number of years, given your appalling record. However, I note that your criminal history shows that there appears to be a gap of some four years between November 2008 and March 2013, during which time you did not come before a Court, but then, you went on to repeatedly offend in 2013 and 2014.
20 In these circumstances, although I do take into account delay in the way that I have said, I am somewhat guarded about your prospects of rehabilitation. You have never acknowledged your offending or shown any remorse. It is a known phenomenon that, once a long-term criminal like yourself gets to his late thirties, he may reflect on his wasted life and decide to do something about it. However, in the absence of any supportive material that you have learned relapse strategies and have demonstrated clean urine samples, I have reservations about your prospects of rehabilitation. Nevertheless, I accept that, having apparently stayed out of trouble for some years and formed a bond with your son. It must have caused you anxiety and uncertainty to face the first trial and, then, thinking that the matter was finished once the proceedings were discontinued, finding that you had to face a second trial. I take this impact into account as a matter of fairness by way of mitigation. Thus, the sentences I impose are somewhat more lenient than would have been the case had you been sentenced in a timely manner soon after committing the offences. I also take into account that, having formed a bond with your son over the last 4 years, you will miss this attachment keenly whilst imprisoned and, no doubt, he will miss you and this will weigh heavily upon you while serving your sentence.
21 I note from his honour His Honour Judge Ryan’s sentencing remarks that you worked undertaking some fencing work prior to relapsing into drug use in 2013. However, there has been no suggestion by your counsel that since being released from custody four years ago you have engaged in any employment, which might point to you being healthy and able-bodied and leading a useful life. Nevertheless, I do take into account that you have at least achieved a level of behaviour such that you have been permitted regular access to your son, and I consider that a meaningful relationship with him may well assist your rehabilitation. I also take into account that you do not have a history of sexual offending, either before or after the offences for which I must sentence you, and it would seem that this was seriously aberrant behaviour in circumstances where you were described by your victim as unsteady on your feet and asking for “choof”.
22 On the other hand, it is an aggravating feature of your offending that it was committed in breach of a suspended sentence of four months’ imprisonment imposed by the Broadmeadows Magistrates’ Court some five months prior to your offending. Nevertheless, I accept that, on balance, the factor of delay and the fact that you have not offended in the last four years means that there is now a somewhat lesser need for emphasis upon specific deterrence than would otherwise have been the case. I also accept your counsel’s submission that while each of the offences is serious, they were committed at the same time and that the application of the principle of totality merits some concurrency.
23 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of five and a half years.
24 On Charge 2, indecent assault, you are convicted and sentenced to be imprisoned for a period of two years.
25 The sentence of five and a half years imposed on Charge 1 is the base sentence. I order that 10 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
26 The total effective sentence is six years’ and four months imprisonment. I order that you serve a period of four years and two months before becoming eligible for parole.
27 I declare a period of 98 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
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