Director of Public Prosecutions v Alsharif

[2023] VCC 1092

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00144

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDOUSLAM ALSHARIF

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2023
CASE MAY BE CITED AS:	DPP v Alsharif
MEDIUM NEUTRAL CITATION:	[2023] VCC 1092

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Rape – Sexual Assault – Complainant was a DiDi passenger – No prior criminal history – Offender born in Libya - Family subject to persecution under Gaddafi regime before moving to Australia – No causal connection between offender’s psychological state at the time and the offending – High moral culpability.
Legislation Cited:	Sentencing Act 1991;
Cases Cited:	Worboyes v The Queen [2021] VSCA 169; Barbar v The Queen [2022] VSCA `22;
Sentence:	7 years’ imprisonment with a non-parole period of 4 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent	Office of the Public Prosecution
For the Accused	Mr L. Barker

HER HONOUR:

1Abdouslam Alsharif, you have pleaded guilty before me to one charge of rape and one charge of sexual assault.  The facts underlying your offending are as follows.

2At the time of this offending you were 50 years old and working as a driver for the ridesharing company DiDi.  The complainant was a 20 year old woman working as a hairdresser.

3On 29 April 2021 the complainant went out with friends to the nightclub
Yah Yah's in Fitzroy to celebrate another friend's birthday.  She drank alcohol and took drugs and at about 2 am went outside the nightclub with another friend who had been evicted to make sure she was okay.  She herself, at this time, was feeling much affected by the substances she had taken.

4The complainant and her friend decided to walk to a nearby 7-Eleven and while walking she noticed a car next to the two of them with the front passenger window down.  This was the car driven by you.  You said you were an Uber driver and could take the girls to where they needed to go.

5The complainant got in the front passenger seat of the car but her friend did not and you then drove off.  Soon after the complainant noticed a click sound as you locked the doors of the car and began driving.  Soon the complainant began to feel uneasy.

6You then drove the car to nearby Cambridge Street where you parked, reached under the complainant's top and roughly felt her breasts.  She told you to stop multiple times and that she had a boyfriend.

7You then touched her upper inner thighs.  She blacked out and woke up to feel your fingers inside her vagina which you were moving in and out.  Those actions underlie Charge 1 on the indictment, rape.

8The complainant said, 'I have a boyfriend.  What are you doing?'.  You then grabbed her hair and pushed her head towards your genitals telling her to, 'Suck it'.  You also said you wanted to, 'Fuck her'.  During this time, you ejaculated into her hair.  These actions underlie Charge 2 on the indictment, sexual assault.

9The complainant mentioned police to you and you offered to drive her back to Yah Yah's.  In the meantime, and it would seem before the assault, the complainant was sending messages to her friends.  Her friend had contacted police.

10At 3.22 am the complainant used Facebook Messenger to share her location with her friend who tried to call her but could not.  It was at this point she contacted police.

11You delivered the complainant back to the corner of Peel and Oxford Streets at about 3.40 am and police arrived soon after.

12The complainant was taken by ambulance to the Royal Women's Hospital. 
A forensic examination was undertaken and swabs were taken both from her hair and her body.  They were subsequently DNA analysed and prove extremely strong support for the proposition that it was your DNA taken from her hair. 
The ratio was a likelihood ratio of 100 billion in favour of that proposition.

13Police reviewed CCTV from the area that identified a car which had been driving around the vicinity of Yah Yah's about the time you picked the complainant up which they then linked to you.

14You were arrested at your home in Lalor on 4 May 2021.  You participated in a record of interview where you denied the allegations although agreed you had been driving your car for work in the area.

15Initially you did not consent to providing a sample of DNA which was, however, ultimately obtained by police pursuant to a senior police officer's authority.

16The matter took some time to resolve.  The complainant was cross-examined at a contested committal hearing on 4 February 2022.  You were committed for trial and you pleaded not guilty.  Ultimately following a directions hearing before me on 14 April 2023 the matter resolved to a plea.  That plea was held only a on Monday, 19 April.  I now turn to the victim impact statement.

17May I make the comment that the complainant came to court and read out her victim impact statement.  It was clear she was still in considerable distress and found this extremely difficult to do.  I commend her on her courage in coming to court and reading out her statement as she did.

18In her victim impact statement, the complainant talked of the emotional impact which she felt almost immediately and which continues to bedevil her to this day.  Almost from the start she felt she had to isolate herself.  She felt numb, started having panic attacks and she said it took months for the numbness to go and that she went then from numbness to a complete breakdown.

19She said she felt as if she was broken in the weeks following after the crime.  She said,

'I now struggle to trust anyone, even people I'm close with.  I struggle to be alone and am always watching over my shoulder and even emotionally I don't feel safe.'

20She said eventually a couple of months after the assault she had a massive breakdown and spent three weeks in a psychiatric ward.  On the anniversary of the assault, she tried to commit suicide.  She stated,

'I was so angry, stressed and upset and I couldn't see a point of living as I was living with constant flashbacks of the event every day and I was in so much pain and I didn't want to live through that day again feeling like I hadn't moved forward at all.'

21The complaint says before the assault she was happily employed as a hairdresser, rarely had to use sick days but she states,

'Now I need to take time off for my mental health very often and sometimes I can't even get out of bed.  I feel bad for it and like I'm letting my co-workers down.  The flashbacks get so bad that sometimes I just can't do my job.'

22She stated,

'It's sad because I used to really enjoy my job and wanted to thrive in it but now I constantly need sick days and think about quitting because of the effect the crime has had on my mental health.'

23The complainant said she used to be a bubbly person who made friends easily and went out with her friends all the time.  She stated,

'Now I can't do that and I stay home a lot and I really struggle to even talk with people.  I feel as though I have this thing weighing on me and I'm not very bubbly any more.  It has ruined me.  It has ruined my relationships.  I'm a lot quieter now and I don't really enjoy life.  I am constantly remembering what happened and it gets in the way of everything.'

24The complainant stated that she was seeking a great deal of psychological support particularly from trauma informed therapists but this is still having limited effect.  Sadly, she concluded,

'I am trying so hard to move on from this and do the best I can.  Getting the therapy and working as much as I can but in the back of my mind, I truly don't think I will ever recover from what has happened, which breaks my heart because I just really miss who I used to be before it happened.'

25Most distressingly the complainant also noted in her victim impact statement that she had seen comments, cruel comments on Facebook.  She stated,

'I saw stuff on Facebook and people's comments.  Some were blaming me and on a website people blaming me and some joking about it.  Even making a meme.  That really upsets me.  In fact, it still upsets me.'

26Can I make this comment:  as to those people who used social media to mock and taunt the complainant their actions, in my view, were a form of emotional rape.  They should bear in mind that this could have been their partner, their daughter, their sister.  Their anonymous, cowardly and mindless cruelty is beyond belief and beyond contempt.  It has added greatly to the suffering of a young woman already staggering under the weight of the trauma inflicted upon her.

27I now turn to your personal circumstances.  You are now 52, married and have five children.  You have no prior criminal history.  You were born in Libya and your father was a police officer under the Gaddafi regime.  When in 2011 that regime fell and because of your father's position your family was subjected to persecution. As a result your parents and all but one of your eight siblings fled Libya and are now living in Tunisia, Canada, the United States and here in Australia.

28Your father died in 2017 and two of your sisters live with your mother in Tunisia in difficult financial circumstances and are reliant on money sent to them by overseas family members, including yourself.

29You completed a bachelor of science in Libya working as a school science teacher for six to seven years before gaining a scholarship to study overseas in 2001.  You obtained a master's degree in biology at a university in Ireland in 2005.  You returned to Libya, married and worked as a university lecturer in biology.

30In 2009 you received a second government scholarship to undertake a doctorate in Australia and began a PhD in biology in Queensland to where you and your wife and daughter then moved.  You now have five children aged between three and 15.

31The scholarship was terminated in 2015 after the fall of the Gaddafi regime and things became very financially difficult for you.  You were unable to return to Libya and you and your family were granted refugee status here in 2014. 
In 2015 you became an Australian citizen and were awarded your doctorate.

32However, your poor English skills prevented you from obtaining university lecturing work and you could only find part time and poorly paid work assisting foreign students at RMIT with their research.  You were forced to take work as a rideshare driver to make ends meet and support your family.

33You harbour continual fears for your family, especially your mother and two sisters, who live in much reduced circumstances and who you have been able to help little because of your own difficult financial circumstances.

34In 2017 your father suffered a sudden illness and died while you were en route to visit him in Tunisia which your counsel said devastated you. 

35In 2021 your mother became gravely ill with what was ultimately diagnosed as an atypical post COVID response, was twice hospitalised and there were fears she would die.  Her second hospital admission was in the immediate lead up time to this offending.

36Your time in custody has been difficult, marked by lockdowns and restrictions to family visits.  You work in the carpentry unit.  Your counsel told me you are so deeply ashamed you have told only one sibling of your incarceration.

37Psychologist, Laura Fleming, whose report dated 27 February 2023 was tendered on the plea, gave the opinion you had suffered depression and anxiety since the Libyan government change and your inability to return there.  She diagnosed you as suffering an adjustment disorder at the time of your offending which, psychological speaking, is an ongoing inability to adjust to stressors in one’s life and which, if it continues, can result in a major depression or generalised anxiety.

38She said that you presented with significant distress, low mood, poor sleep and appetite, felt guilt and shame in relation to your family’s welfare and was continuing fears that your mother would die before you saw her again.

39Your counsel, Mr Barker, in a sensible and sensitive plea on your behalf conceded there was no causal connection between your psychological state at the time and the offending.  He noted Ms Fleming's opinion that prison was more likely to weigh on you than a prisoner without your conditions which were also likely to worsen in custody.

40You continue to enjoy the support of your wife and children.  I also received character references from your wife and friends from the Libyan community in Melbourne, all attesting to your qualities as a husband, a father, friend and member of the community.  They all described your offending as out of character.  I am satisfied you do enjoy the protective factors of a supportive family and community on your release.

41At a sentence indication hearing on 14 April 2023, I ruled that a sentence of seven years' imprisonment with a non-parole period of four and a half years would be an appropriate response to your offending.  Legislative provision means I cannot now increase that sentence indication following the plea.

42Your counsel, however, urged that I impose a lesser term, describing you as a vulnerable man and citing your previous good character, the difficulties you suffer in gaol, the considerable trauma and setbacks you have suffered since 2013 and the family and community support you continue to enjoy.

43He also submitted your plea of guilty at a time when the courts are still wading through the case backlog arising from the pandemic restrictions warranted a significant discount as per the Court of Appeal decision in Worboyes.

44Sexual offending against substance affected young women by taxi or Uber drivers has become all too prevalent.  I was referred to three such cases by the prosecution.

45The case of Babar v The Queen [2022] VSCA 122 is almost startling in its similarity to the offending in this case. There an Uber passenger, an alcohol affected young woman, was asked by the driver if she would like a cheaper ride if she did something for him and he then proceeded to digitally rape her. The complainant escaped the car and immediately reported the attack. The driver denied the offending to police and continued the denials despite extremely strong supporting DNA evidence, conducting a contested committal where the complainant was cross-examined then pleaded before trial.

46In addition to time in custody that accused was held for 698 days in immigration detention, a matter taken into account by the judge who sentenced him to five years gaol with a three year minimum term, a sentence which the Court of Appeal described as lenient.  That accused too suffered psychological maladies including a major depressive disorder and PTSD from traumatic childhood experiences.

47In declining to lessen that sentence Their Honours stated at paragraph 27 of the judgment,

'Clearly in this case a total effective sentence of five years’ imprisonment with a minimum non-parole period of three years is a lenient sentence, when considered against the overall circumstances that we have enumerated, particularly the serious nature of the offending, the subsequent victim blaming.'

48There the offender told the police the complainant had made advances to him, which was not the case here. The Court of Appeal referred to:

'The contested committal, the late plea and the standard and maximum sentences for this offence.'

49Apart from the victim blaming all those considerations apply in your case.  The sentence was less in that case because of the time spent by the offender in immigration detention, which does not apply to you.

50In my view, the offending in your case is worse than that of Babar.  It involved not just rape but a particularly gross example of sexual assault where you tried to force oral penetration on the complainant in the process ejaculating into her hair.

51As I have said, the catastrophic effects of your sexual assault on the complainant are all too clear.  Her personal, social and working life have all been devastated.  She has attempted suicide.  More than two years have passed since that night and despite accessing long term appropriate trauma informed therapy she continues to be ravaged by flashbacks, panic attacks and debilitating anxiety.  You inflicted this upon her and she did nothing to deserve it.

52General deterrence, that is a sentence which sends out a clear message that those who act as you did and, in the process, inflict the appalling harm that you have, can only expect a lengthy term of imprisonment in my view dominates the sentencing exercise before me.

53Your offending also deserves denunciation by the court.  Your moral culpability is high.  Your actions were predatory and deliberate.

54As I stated on the plea, the fact that you yourself suffered the trauma that you did, the family persecution and dislocation, your inability to find employment commensurate with your considerable professional qualifications, your resultant psychological distress, did not entitle you to take out your anguish on a vulnerable young woman who, like hundreds of young women do every evening after a night out with friends, simply took a ride home in a taxi or Uber.

55The fact is that theirs is the entitlement,  the entitlement to a safe drive home in the Uber or taxi they get into,  safe from a predatory sexual attack that then devastates them in every area of their lives for years to come.  You breached this duty of care which every share driver owes to his or her passenger.

56As to your prospects of rehabilitation, you reached a mature age without criminal offending and while you have good family support the fact remains you launched this serious sexual attack on a vulnerable young woman for reasons which cannot be accounted for on psychological grounds.  It smacks of acting out your own feelings of frustration and powerlessness by imposing sexual powerlessness on someone weaker than yourself.

57The factors underlying those feelings will not have changed on your release from custody and without appropriate future therapeutic intervention your prospects, in my view, must remain guarded.

58In sentencing you I take into account the mitigatory factors I have outlined which were submitted to me by your counsel.

59However, in all the circumstances and for much of the reasons given by
Their Honours in Babar, it is my view that the sentence indication I made should stand.

60I note that the maximum penalty for rape is 25 years' imprisonment and the maximum penalty for sexual assault is 10 years' imprisonment.  The standard sentence for a charge of rape is 10 years' imprisonment.

61I therefore sentence you as follows.

62On Charge 1, rape, you are sentenced to six years' imprisonment.

63On Charge 2, sexual assault, you are sentenced to two years' imprisonment.

64I order that one year of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1 giving a total effective sentence of seven years.

65I order you serve four and a half years before becoming eligible for parole.

66I declare that you have served 780 days of this sentence by way of pre-sentence detention.

67Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of eight years and ordered a minimum term of five and a half years.

68Is there anything else that I need to attend to?

69MS SARGENT:  Your Honour, only in respect to the date of the arraignment.  My notes say it was 19 April.  The indication was on the 14th but the arraignment and the plea, just for Your Honour's sentencing remarks.

70HER HONOUR:  Thank you.  I note that and I will make - - -

71MR BARKER:  That's correct, Your Honour.

72HER HONOUR:  Thank you.  Thank you, Mr Barker.  I will make those amendments when I revise the sentence.

73MS SARGENT:  Thank you, Your Honour.

74HER HONOUR:  I thank counsel for their assistance. 

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