Director of Public Prosecutions v Alki
[2021] VCC 1965
•2 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -21-00323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM ALKI |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 November 2021 |
DATE OF SENTENCE: | 2 December 2021 |
CASE MAY BE CITED AS: | DPP v Alki |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1965 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Plea of Guilty – Conduct Endangering Persons – Common Law Assault – Stalking – Distributing an Intimate Image – Committing an Indictable Offence on Bail – Contravening a Conduct on Bail – HIV Positive – Successful Completion of CISP Bail – COVID-19 Pandemic.
Legislation Cited: Kuoth v The Queen [2010] VSCA 103; R v Verdins [2007] VSCA 62
Cases Cited: Sentencing Act 1991 (Vic)
Sentence: 5 months imprisonment with a 2-year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | M. Fisher | Office of Public Prosecutions |
For the Accused | W. Barker | MICHAEL J GLEESON & ASSOCIATES |
HIS HONOUR:
1Adam Alki, you have pleaded guilty to one charge of conduct endangering persons, one charge of common law assault, one charge of stalking. The maximum penalty for reckless conduct is five years’ imprisonment. The maximum penalty for common law assault is five years’ imprisonment, and I note that that is a rolled-up charge. The maximum penalty for stalking is 10 years’ imprisonment.
2You also pleaded guilty to relevant summary offences; a rolled-up charge of distributing an intimate image which carries a maximum of two years imprisonment. A summary offence of committing an indictable offence whilst on bail which has a maximum of three months’ imprisonment, and a summary offence of contravening a conduct on bail which is also a rolled-up charge, and the maximum penalty for that offence is three months’ imprisonment.
3You have no prior convictions and that is a matter of some significance in the sentencing exercise. The summary of prosecution opening, which was Exhibit A, forms part of these reasons for sentence and I will not repeat the detail of that. I will provide a briefer summary of your offending.
Circumstances of Offending
4By way of overview, in November 2017, you were advised by the Health Department that you were HIV positive. In June 2019, you commenced a relationship with your victim in relation to each of the charges, a Ms Rawson[1]. Between July 2019 and 27 June 2020, you regularly engaged in unprotected sexual activity in circumstances where Ms Rawson was unaware of your diagnosis and in circumstances where at least for part of that period you were not fully compliant with your medication. Your conduct exposed Ms Rawson to an appreciable risk of contracting the virus and you were reckless in this regard and that forms the basis of charge 1.
[1]A pseudonym
5During your relationship, you assaulted Ms Rawson on two occasions and charge 2 represents those two occasions which are rolled-up into charge 2. Ms Rawson attempted to end your relationship in May 2020. However, you persistently contacted her and her family members over a period of time, and that represents charge 2.
6On one occasion, you sent an intimate image of Ms Rawson to three of her family members, and that is the relevant summary offence. In July 2020, Ms Rawson obtained an intervention order which prohibited you from contacting her and you were admitted to bail on your own undertaking. You subsequently breached those court orders by continuing to contact Ms Rawson, and those are the summary offences that relate to the bail offences; committing an offence whilst on bail and contravening bail conditions.
Gravity of Offending
Conduct endangering persons (charge 1)
7You were aged between 31 and 34 years at the time of the offences. Ms Rawson was 23 to 24. The serious aspects of charge 1, conduct endangering persons, include the following;
-It was accepted that when you began your relationship Ms Rawson asked if you were clean and you told her that you were.
-You did not disclose that you were HIV positive.
-You regularly had unprotected sex throughout the relationship, including a period where you must have realised your viral load was not being managed.
8The opening indicates that protection was never used during what was a relationship involving a high level of sexual activity. Health records reveal that you had an undetectable viral load in August 2019, which means you did not present a risk. You were provided with six months of medication to reduce your viral load, which would have been sufficient to treat you until February 2020.
9However, you did not reattend for treatment until 12 May 2020 and it was revealed at that point that your viral load had risen to a significant level. You were given a month’s worth of medication. You did not attend a later appointment made later that month. On your admission, you indicated that due to substance abuse and the accompanying state you were in at that period of time, you ceased taking the medications.
10The plea to Charge 1 is put on the basis that due to the unprotected penetrative sexual activity engaged in with Ms Rawson over the course of that relationship, you knew you were HIV positive. By regularly engaging in unprotected sex in circumstances where you were not fully compliant with your medication, you were exposing Ms Rawson to the risk of serious injury, namely contraction of the virus.
11Your counsel made submissions in relation to the level of offending. I accept that the risk was a gradual risk, and that due to your problem with illicit substance abuse, your attention to that risk was obviously impaired to some degree due to that illicit substance use, and that provides the context in which you were reckless.
12In a thorough and accomplished plea on your behalf, your counsel, Ms Barker, referred me to the case of Kuoth v The Queen[2], which assisted me in my approach to your criminality in respect of Charge 1. I was told that it is supposed that you contracted HIV somehow via your descent into drug use, and perhaps via various sexual encounters. You yourself told Ms Fleming, the psychologist, that you have concluded it was through intravenous drug use, which may in fact be the case.
[2] [2010] VSCA 103.
13I was told by your counsel that you had difficulty coming to terms with your status as being HIV positive, as many people do. Your condition was undetectable due to medication, however, due to not being fully compliant with appointments and medication, you should have known that would render you contagious. Due to a bad methamphetamine addiction at the time and other things that were going on in your life causing you stress and anxiety, you did not have the presence of the mind to address the obvious risk that you were creating.
14There were serious implications for others involved, it was accepted. It was submitted to me that your contraction of HIV was additional punishment in some way, and it was linked to your offending. I accept the latter, of course, that it was linked to the offending, because it is central to the offending. I do not accept that it should be regarded as additional punishment. The contraction predates your offending, and, as has been pointed out, your offending is constituted by your reckless conduct after coming aware of your condition. However, I accept Mr Barker’s submissions generally in relation to your moral culpability. For an offence of this type, for the reasons advanced by Mr Barker, your moral culpability is toward the lower in, in my view.
Common law assault (charge 2), stalking (charge 3) and relevant summary offences
15Charges 2 and 3 are relatively serious examples of that type of offending, that is, assault and stalking in a family violence context. You demonstrated a high level of violence towards your partner, involving tormenting behaviour and a desire to humiliate, control and manipulate her. The community regards violence against women as very serious. The conduct you engaged in must be denounced.
16You struck Ms Rawson multiple times in the face, causing bruising, pain and a perforated eardrum. On another occasion you pushed a hot stove lighter onto her leg three times. And, Charge 2, as I have pointed out, is a rolled up count embracing those acts. The stalking charge represents repeated unwanted contacts between 27 June 2020 and 14 July 2020. Between those dates, you attempted to contact Ms Rawson with incessant text messages, hundreds of phone calls, electronic bank transfers which had messages attached, items sent via Uber Connect, handwritten letters, emails, automated SMS and also via TikTok.
17You also attempted to contact Ms Rawson indirectly through her father, her mother and her mother’s partner, and her grandmother. This conduct caused her fear and apprehension. It was intimidating. It strained her relationship with her family. The details are set out in the prosecution opening, and I will not summarise them herein, but they form part of these reasons.
18On 10 July, you sent an image depicting Ms Rawson performing a sexual act on you to her father, her mother and her mother’s partner. This is a serious example of that summary offence.
19The contacts over 13 to 14 July were in contravention of bail. Again, they are summarised in the prosecution opening, and I will not repeat those summaries.
Pre-sentence Detention and CISP Bail
20You spent two separate periods on remand for this matter; 14 July to 15 December 2020, and 16 February 21 to 9 June 21, a total of 267 days. Those periods of custody were in onerous conditions due to the pandemic and the restrictions that applied to persons in custody at that time and the affect those restriction had on those in custody and the custodial experience; it was a much harder experience than at other times.
21Added to that, in your case, you had formally been employed as a prison officer, and that was an added layer of difficulty to your prison experience. Your inability to desist from contacting Ms Rawson was largely responsible for your continued incarceration. You simply could not be trusted to refrain from contacting her. The matter first came before me for plea on 4 May 21. It could not proceed as a plea. There was a charge in the indictment which could not be sustained. The matter was adjourned for a case conference before me, and I granted bail on 9 June 2021. That was what is understood as CISP bail, a supported bail program, which meant, along with other matters, you had to come back before me every month and I got a report on your progress.
22I will come to those matters later, but your progress on CISP bail was excellent, and you got good reports and you demonstrated an ability to rehabilitate. The successful completion of CISP bail combined with your previous good character, and in light of the revised indictment once the matter resolved, made it clear to me that a disposition other than a return to custody was warranted in your case.
Victim Impact Statement
23Ms Rawson made a victim impact statement. She asked that it not be read in open Court. Therefore I am not going to recite aspects of it in this sentence, but it suffices to say that the impact on her has been significant.
24It has been incredibly traumatic for her. It has affected her trust. She has also suffered physically and stated that she is permanently damage. She will have permanent trust issues; she experiences nightmares, anxiety and it is very clear that the impact upon her from your crimes has been significant.
Personal Circumstances
25Returning to your personal particulars, you were born in Carlton on 22 May 1986. Your parents separated when you were around three, and from there on you lived with your mother. I was told - and it is referred to throughout the reports - that your father was a violent man, and the marriage was an unhappy one, and you were exposed to trauma and violence from infancy.
26Your mother was a cleaner, and later, after she met your step-father, your mother worked as a receptionist in his business. You have maintained a reasonable relationship with your mother, save for the periods of time when you were using drugs, which I have already touched upon. Once you were arrested, you began contact with your mother again, and the relationship has mended. Your mother married your step-father when you were around nine, and you had a good relationship with your step-father, I was told, and once your mother and he separated, you continued to refer to him as your stepfather.
27As I have touched upon already, your biological father was not a positive father to you and your siblings. He was violent towards your mother. He was a drug-user, I was told, and exposed you to what could broadly be described as extremely negative and traumatic influences. You last spoke to your father when you were around 16 years of age.
28I have taken into account your traumatic childhood and aspects of disadvantage associated with it in a broad way, and it is relevant to the sentencing process to understand you as an individual and the obstacles that were in your path as a young person towards becoming a functional member of society. I was told your father committed suicide five years ago and that has understandably had an impact upon you.
29Your sister has been mentioned throughout these matters and has been a support for you. You have a half-brother who you had a difficult relationship with who unfortunately passed away recently. However, you had, on a positive note - mended your relationship with him, which had been a difficult one in the past.
30Your sister, Charmaine is around 40 years of age and she is an operations manager in a building company.
31You had been in a relationship with Emily for some years, and when that relationship faltered, you entered the relationships that have been the subject of the matters before the Court. You and Emily have a daughter – sorry.
32You also have a daughter, Ellen, to a previous partner and you are endeavouring to sustain that relationship.
33You attended primary school in Werribee before moving to Ballarat and you went to Ballan Primary School and then Mount Clear Primary School in Ballarat. You were finishing Year 11, but due to glandular fever you had to take some time off. You completed adult VCE at the University of Ballarat to complete high school.
34You then went on to gain a Certificate III and IV in Personal Training at Ballarat TAFE. You had played football throughout your younger years, but also into your 20s playing senior football, which is often a positive and protective factor. I was told that you plan to return to football socially.
35You have had a number of jobs since leaving school. You worked for Telstra in a Telstra retail store in Ballarat. You then got a job at the MRC as a prison officer for just over two years until you were 26. While still working in that role, you began work as a personal trainer and did that work as well for over a year. At 28, you worked for Origin Energy in their call centre as a team leader. You managed a team of around 20 or more.
36It was whilst working there that you commenced using drugs and you continued working there into the commencement of your offending period. Since you have been on bail – and I became aware of this through the CISP monitoring sessions and also through the reports and through your own reportage to me during those monitoring sessions – you obtained employment in a Telstra call centre where you are working full time from home and you seem very positive and optimistic about that employment.
37Mr Barker, in his written submissions and in his oral plea, went into some detail about your descent into drug use and the things that were going on in your life at that time. I accept those matters, but I do not propose to go into any more detail here in relation to them.
Matters in Mitigation
Plea of guilty
38In relation to matters of mitigation, your plea of guilty was relied upon, and it is a significant plea. It is an early plea. The plea hearing was listed, of course, in May. For good reasons, that plea could not take place and the prosecution ultimately revised and rationalised that indictment – waiting for High Court authority caused some further delays, and in the meantime, you have demonstrated positive rehabilitation whilst on CISP bail.
39The plea I accept has great utilitarian value in the COVID pandemic era, given the state of the trial lists in this state. They are in a state of crisis. Further, I accept your plea of guilty is reflective of remorse, and you expressed remorse to the psychologist, Laura Fleming, the report of which was tendered, and I accept the contents thereof.
40And I accept that this plea of yours is reflective in part of wanting to put a line under the matter and not wanting to put your victim through the further trauma of contesting the matter. In addition I accept that you have experienced contrition and a feeling of genuine remorse in relation to the matter.
Mental health
41Your counsel did not rely upon the principle of Verdins[3] in the sense of a reduction in moral culpability. He does rely on the diagnosis and opinion of Ms Fleming in relation to stimulant use disorder and borderline personality disorder which in her opinion were both present at the time of offending and particularly played a role in making you impulsive and less able to make appropriate choices. Ms Fleming also raised the possibility of drug-induced psychosis in part in relation to the violent offending.
[3]R v Verdins [2007] VSCA 62.
42Mr Barker has not sought that I make the connection to the strength that I invoke limbs one, two, or three of Verdins, and on the materials before me I am unable to, but they are still relevant findings that I take into account. They inform my overall assessment of you as an individual and your moral culpability.
Prospects of rehabilitation
43Mr Barker also relied upon established rehabilitation, and I accept that. There are still concerns in relation to your rehabilitation, but you are making good progress and all the signs are that you have the ability to rehabilitate. There are still some lingering concerns around mental health and drug use and the sentences that I impose will go some way to addressing those.
44Generally, you have demonstrated rehabilitation during the period of delay and your prospects of rehabilitation I regard as reasonable. I take into account also the conditions you experienced in custody for some nine months, and also the fact that that custody for you would have represented a salutary lesson and a shock for someone such as yourself who had never before been convicted of any matters and whose only experience with the prison system had been as a prison officer.
45I have referred to your progress on CISP bail and I received a final report dated 3 November 2021 which speaks well to your progress, and also provides a good outline for structure moving forward. I will not read from that report, save to say that all the reports are on file and before me and I have taken their contents into account in relation to this matter.
46There is the report of 3 November. There is a participant progress report. It was from 1 November in relation to alcohol and drug counselling. There is the report of 7 October and associated progress report from 6 October in relation to alcohol and drug counselling, also 18 August and 17 August, and indeed the final one. I misspoke when I said 2 November. I have an exit report, effectively, from 30 November, and there is an alcohol and drug treatment report that accompanies that one. So I have had an opportunity to observe you over the months, and not just observe you, but to be informed of your progress by that strong supported bail program.
Risk of reoffending
47The report of Laura Fleming, aside from the matters I have already referred to into your mental state, also details much of your early life, including trauma and exposure to violence. And, as I have indicated, I take those matters into account. As part of the Community Corrections Order assessment, the Forensicare mental health and advice and response service assessed you on 11 November, and I have received a report in that regard. I will read from the final paragraph:
Mr Alki presented as a reasonably intelligent man, without prior criminal history, who expressed shame and regret regarding his behaviours and charges. He reported no longer engaging in these behaviours and is proud to have ceased his illicit substance use. He had some concerning experiences in his childhood and there is possibly some unresolved grief issues. He is currently engaged with a psychologist for diagnostic clarification. I respectfully recommend he continue to engage with his psychologist to clarify his diagnosis and address his negative childhood experiences and grief issues until his psychologist deems it no longer necessary.[4]
[4] Report of Dr Brenda Hughes dated 11 November 2021, p. 2.
48The Community Corrections Order assessment assessed you as suitable and made particular recommendations for special conditions, which I will impose on a Community Corrections Order. As part of that report, the assessor stated that you self-reported that you are currently not taking any drugs. It states:
He claimed that he used to use Ice and GHB and his last use was 18 months ago. Mr Alki stated that he does not really drink, and his last drink was two years ago. Mr Alki disclosed that he was diagnosed with bipolar when he was 18. Mr Alki stated that he is currently seeing a psychiatrist and that he 'might have ADHD'. Mr Alki also stated that he is currently taking anti-depressants that are not for his bipolar. In relation to the offending, Mr Alki offered admissions to his actions. He stated that he was working for an energy company in the city and was also taking drugs. He explained to the author that he then stopped working in 2019 and, started using drugs heavily and 'became out of control'. When questioned on the charges before the court, Mr Alki attributed all his offending to drugs. He stated that he stopped medication for his HIV, was 'drug fuelled' and it 'became out of hand'. When questioned on his reflection of the current offending, Mr Alki stated he 'feels horrible', 'had bipolar' and 'let myself mentally go'. Mr Alki also stated that 'I regret everything' and 'wish I didn't do it'.[5]
[5] Report of Rachel Kuang dated 5 November 2021, p. 2.
49Now, I accept those matters that are expressed therein. You were also assessed as being high risk of general reoffending due to some of those vulnerabilities: drug use and still some concerns regarding mental health, and they are matters that, in my view, can be addressed via a Community Corrections Order.
Assessment of Sentencing Factors
50Mr Barker submitted that all of the sentencing factors I must consider can be met in your case by a Community Corrections Order across all the charges. He relies upon the nine months or thereabouts you have spent in custody as supportive of his submission, in the sense that I can take that salutary experience and the difficulties associated with it into account in imposing a Community Corrections Order on all those matters.
51When I am having regard to the gravity of the offending and the associated moral culpability , and in particular the gravity of Charge 2 and 3, and considering general deterrence, denunciation, and a degree of specific deterrence, I have concluded that, in relation to Charge 1, given the period spent in custody, a straight Community Corrections Order without any work hours, but strongly supported by special conditions is appropriate. However, I am not so satisfied in relation to Charges 2 and 3 and the remaining summary charges, notwithstanding that you effectively come to the Court as a person without prior convictions.
52There is a level of seriousness attached with those charges that, given all the matters before me, I am of the view that the Court still needs to impose a sentence of imprisonment in order to denounce and deter others. That is notwithstanding that I am imposing a period less than you have already served.
Sentence
53I sentence you as follows, Mr Alki.
54In relation to Charge 1, I impose a two-year Community Corrections Order. The special conditions of that Community Corrections Order are that you attend for drug treatment and rehabilitation as directed; mental health treatment and rehabilitation as directed; programs to reduce reoffending treatment and rehabilitation as directed. And I note in particular I am including behavioural programs in relation to that.
55Whilst this Corrections Order, strictly speaking, has not come off the back of Charges 2 or 3, in my view, your rehabilitation and corrections should address your offending behaviour, which includes that family violence conduct and stalking conduct. So, in terms of programs to reduce reoffending, in my view, those risks and concerns should be addressed therein as well, also imposed supervision. I have decided not to impose community work hours, the reason being that the period of custody you have served, that will not be credited, in effect, to Charge 1. Nonetheless, it has been taken into account, and that’s the reason for me not imposing work hours on that CCO.
56In relation to Charge 2, I sentence you to three months’ imprisonment.
57In relation to Charge 3, I sentence you to three months imprisonment.
58In relation to the relevant summary offense of distributing an image, I sentence you to two months imprisonment.
59In relation to the bail offence of committing an indictable offence on bail, one month imprisonment.
60In relation to the contravening bail charge one month imprisonment, I direct that one month of the sentence imposed on Charge 3 on the indictment be served cumulatively on Charge 2.
61I also direct that one month of the sentence imposed on the relevant summary offence of distributing an image be served cumulatively on Charge 2 also.
62That makes a total effective sentence of five months imprisonment.
63I declare that you have served five months’ imprisonment.
64I make the forfeiture orders sought. Yes. Sorry. I think it is one forfeiture and one disposal order. I make each of those.
65Pursuant to s6AAA, had you not pleaded guilty to these matters, I would have sentenced you to a total effective sentence of two and a half years imprisonment with a non-parole period of 14 months. [6]
[6]Sentencing Act 1991 (Vic).
66MR BARKER: As Your Honour pleases.
67HIS HONOUR: Now, I think they’re the only matters. The s 18 pre-sentence detention that I declared is five months in order to cover that sentence of imprisonment I’ve imposed, there’s obviously a remainder there.[7] Now, my view is I don’t declare the whole lot. If ever for whatever reason he’s being dealt with again in relation to the CCO. Of course he’ll have that remainder available to be declared into the future if necessary. Is that the correct approach?
[7]Sentencing Act.
68MR BAKER: I agree with that, Your Honour, yes.
69MS MARGORNIS: Yes, Your Honour.
70HIS HONOUR: All right. Thank you both. Now, Mr ‑ ‑ ‑
71MS MARGORNIS: Your Honour, just ‑ ‑ ‑
72HIS HONOUR: Sorry.
73MS MARGORNIS: ‑ ‑ ‑ one matter. I didn’t mean to cut across Your Honour. There is only one forfeiture order, but it’s in relation to two mobile phones.
74HIS HONOUR: Okay, all right. Yes, I might have just got it printed off twice. All right, look, the forfeiture order is made, okay, and it’s got, yes, in the schedule, S2 mobile phones, a Nokia and an Oppo. All right. Now, Mr Alki, you consent to that Corrections Order?
75OFFENDER: Yes, definitely, thank you. Yes.
76HIS HONOUR: All right. It’s two years. That gives sufficient time for the programs that are envisaged for you to be completed. It’s largely an order that is directed at your rehabilitation. All orders have a punitive aspect even if they don’t have work hours, because you’re subject to supervision, you’re subject to the supervision of the court, effectively, over that two year period. And you must attend those counselling sessions as directed, programs as directed.
77So there is a punitive aspect about all that. But there’s also a strongly rehabilitative aspect about all that too. You have done well on CISP bail and that’s also involved considerable structure, and you’re working. There’s no reason why you can’t continue to progress. Those professionals that have been assisting you and been involved with you, whilst noting your good conduct, they’ve also identified some vulnerabilities there. So you need to continue to have that support. Now, what will happen is those documents will be prepared. I’ll sign them and they’ll go to you for your signature. But you’ve indicated you consent to it today.
78OFFENDER: Yes.
79HIS HONOUR: And you will have to contact Corrections within two days, I think it is.
80OFFENDER: Yes, cool.
81HIS HONOUR: All right. Are there any other matters?
82MR BARKER: No, Your Honour.
83MS MARGORNIS: No, Your Honour.
84HIS HONOUR: Thank you, everyone.
85OFFENDER: Thank you, Your Honour.
86MR BARKER: Thanks, Your Honour.
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