Director of Public Prosecutions v Babar
[2021] VCC 180
•26 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAFIZ MUHAMMAD FARID BABAR |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2021 | |
DATE OF SENTENCE: | 26 February 2021 | |
CASE MAY BE CITED AS: | DPP v Babar | |
MEDIUM NEUTRAL CITATION: | [2021] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: rape - standard sentence - The rape occurred after you had picked up your victim in your vehicle as part of an Uber ride - immigration detention – remorse
Legislation Cited: Sentencing Act 1991
Sentence: 5 years’ imprisonment and I fix the period of 3 years’ imprisonment as a period that you must serve before you will become eligible for parole – s 6AAA: 7 years’ imprisonment with a non‑parole period of 5 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown (For plea) Ms E. Margaronis (For sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis (For plea) Mr S. Kaiser (For sentence) | James Dowsley & Associates |
HIS HONOUR:
1Hafiz Babar, on 10 February 2021, you pleaded guilty to one charge of rape. The maximum penalty for rape is 25 years’ imprisonment. Pursuant to the provisions of the Sentencing Act 1991, the offence of rape is a standard sentence offence and the standard sentence for the crime of rape that “is in the middle range of seriousness” is ten years’ imprisonment, while the non-parole period is six years’ imprisonment.
2Tendered as Exhibit A and read aloud in Court was the Amended Summary of Prosecution Opening upon Plea. In short, on Saturday 15 September 2018, you raped your victim by introducing your fingers into her vagina. The rape occurred after you had picked up your victim in your vehicle as part of an Uber ride.
3On 15 September 2018, your victim attended a house party in Mordialloc with three friends. She arrived at the party between 7.45 and 8pm and while there consumed at least five standard drinks. At about 10pm, your victim and her friends left the house party and your victim, together with one friend, was dropped off at another house party in Hughesdale. Shortly after arriving at the second house party, your victim’s friend, using your victim’s phone, ordered an Uber for the victim so that she could travel home. You were working as an Uber driver and accepted the job to attend at the Hughesdale address and to take your passenger, your victim, to her home in East Bentleigh. As your victim was affected by alcohol, she was assisted into the rear of your car and sat directly behind you.
4You drove in the general direction of your victim’s home. However, along the way, you pulled over and said to the victim “Do you want the ride for cheaper? If you do something for me, I can make the ride cheaper”. Your victim responded “No, it’s fine, I don’t care about having to pay for the ride”. However, you kept repeating to your victim that you could make the ride cheaper and your victim insisted that she did not want to do anything like that.
5You got out of the driver’s seat and got into the rear seat next to your victim, and continued to tell her that you could make the ride cheaper. You started touching your victim’s thighs and moved your hands under her skirt, up towards your victim’s underwear. Your victim repeatedly told you “no”. Your victim tried to move away from you by squirming towards her door. You slid your hand inside the victim’s bodysuit and under her underwear. Your victim tried to tightly close her legs and move away from you, but you were forceful. You inserted your fingers into your victim’s vagina.
6Your victim opened her passenger door, and you tried to grab her leg as she got out of the car and said to her “no, no, stay”. While crying and panicking, your victim ran to a nearby house and rang the doorbell. The door was answered by Ms Kati, and before she could say anything, your victim told her “he was touching me”. Your victim told Ms Kati that a creepy guy was touching her, her Uber driver. Ms Kati asked your victim’s name and whether she went to school and where she had been and who to contact. Approximately 10 minutes later, Ms Kati’s husband arrived home with her daughter, who coincidentally worked together with your victim and recognised her immediately. Mr Kati recalls your victim’s distress and that she was sobbing and talking rapidly and repeated “he was touching me, he was touching me”.
7The Kati family took your victim inside their house and ascertained that the victim wished to report the incident to the police, after which they asked no further questions of your victim and drove her to the Oakleigh Police Station.
8At about midnight, the matter was reported to the police at the Oakleigh Police Station, and police personnel from the Dandenong SOCIT unit attended and conducted a disclosure interview with your victim and transported her to the Monash Hospital for a forensic medical examination.
9You were interviewed under caution on 17 September 2018 at the Footscray Police Station. You told the police that after you had picked up your victim and as you drove towards her destination, she told you to pull over. You said your victim got out of the vehicle and started vomiting, then told you that she was going to her friend’s place. You told the police that your victim then got into the front seat and that she was a little drunk. You said that you had a kiss and then you dropped her off again. You said your victim got out of the car and then moved back to the back seat and asked you to do the same, which you did. Whilst in the back seat, you “had a little bit of kissing”. You asserted against your victim that she got on top of you, straddling you, and asked if you had a condom, to which you replied “No, please, we are off. This is not working”. You alleged against your victim that she had touched your erect penis for a few seconds and you denied touching her vagina or penetrating her vagina, and further asserted that your victim was not crying when she left the vehicle, that she was “just normal”.
10Subsequent to the September 2018 interview, an analysis of the high vaginal swabs taken from your victim resulted in a mixed DNA profile of at least two contributors, and on the basis that your victim is assumed to be one of the contributors to this DNA profile, then the evidence was that it was 150,000 times more likely that you were a contributor to the DNA sample than a person randomly selected from the community.
11In relation to your victim’s vulval swab, a mixed DNA profile of at least two contributors was obtained. If your victim was assumed to be a contributor to the DNA profile, then the evidence is 100 billion times more likely that you were a contributor to the DNA sample than a person randomly selected from the community.
12On 4 January 2019, you were again interviewed under caution during which you were informed of the DNA results. However, you continued to maintain that you did not touch your victim’s vagina or touch her anywhere near her vagina.
13You were charged and remanded on 4 January 2019, after the second record of interview. You were granted bail on 1 February 2019. Accordingly, as at the day of your plea you had spent 28 days by way of pre-sentence detention.
14As a result of being charged, your student visa to remain in Australia was cancelled and you were detained in immigration detention from 14 March 2019 until you were remanded in custody for sentence on 9 February 2021.
15You conducted a contested committal on 1 August 2019 and the matter resolved on 7 December 2020.
16During the course of the plea hearing, your victim attempted to read her victim impact statement. However, very shortly into that process, she became so distressed that she could not continue and the document was read into the record by Mr Brown, the prosecutor. The victim impact statement was marked as Exhibit B on the plea. Despite the passage of almost two and a half years, your victim is plagued with the memories of being raped. She was but only 18 years of age and in her first year of university. Immediately after your offending against your victim, she was overwhelmed with feelings of fear and shame. She spent days crying in her room, reliving what seemed to be, to her, an endless loop of the assault. She was overcome with anxiety and found it hard to leave the safety of her home.
17Eventually, the fact of your victim’s plight became known amongst her friends and she found speaking to her friends about the incident incredibly difficult, and she still struggles to keep herself together when she broaches the topic even today.
18Such was evident in the Court on 10 February 2021.
19Your victim has distanced herself from many of her close friends that she had at the time of your offending against her.
20Your victim experienced a tremendous amount of anxiety and fear leading to the cross-examination at committal.
21In her statement, your victim wrote:
“I still carry a large case of emotional baggage linked to this crime, baggage that I feel prevents me from forming new relationships – amplified by nagging thoughts of self-pity and embarrassment.”
22To say that your offending has had a profound effect on your young victim is an understatement.
23The application of the standard sentence provisions was considered by a Bench of five Justices of the Court of Appeal in Peter Brown v R [2019] VSCA 286. At paragraph [4] of the judgment of the Court it opined:
“The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
• is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
• does not affect the established ‘instinctive synthesis’ approach to sentencing;
• does not require or permit ‘two-stage sentencing’; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.”
24Later, at paragraph [7] of the judgment, the Court opined:
“In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’.”
25Later, at paragraph [25] of the judgment, after reviewing the authorities, the Court opined in respect to the non-parole period for a standard sentence offence that:
“These passages may be distilled into a number of propositions, as follows:
1. The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.
2. In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
3. Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a)‘without reference to matters personal to a particular offender or class of offenders’; and
(b)‘wholly by reference to the nature of the offending’.
4. The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.
5. The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.
6. The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.”
26Tendered on your behalf by Ms Karapanagiotidis of Counsel who acted on your behalf, were her outline of submissions (Exhibit 1), the psychological report of Ms Carla Ferrari dated 5 February 2021 (Exhibit 2), a bundle of five character references (Exhibit 3), a bundle of education and work certificates (Exhibit 4) and a list of medications prescribed to you while in detention. (Exhibit 5).
27Ms Karapanagiotidis at the outset of the plea acknowledged that your offending was clearly serious and warranted an immediate term of imprisonment. She described your victim as a young vulnerable woman and that your actions represent a significant breach of trust given your position as an Uber driver. Further, she submitted, whilst your actions could not be characterised as momentary, your offending occurred over a confined and short period of time.
28You are 32 years of age and have no prior criminal history. Your plea is not an early one as you conducted a contested committal hearing. However, your plea does have significant utilitarian benefit and at the conclusion of the plea you gave evidence as to your sorrow and remorse in respect to your conduct. I will return to this matter later.
29Apart from the short period of time that you have spent on remand, you have spent 698 days in Immigration Detention. You must receive full benefit for this detention although it does not constitute pre‑sentence detention pursuant to s18 of the Sentencing Act 1991.
30You were born in Pakistan and are the middle child of seven children. You described to Ms Ferrari that your childhood was a difficult one as your parents were strict and your father was aggressive both physically, mentally and verbally towards your mother and the children of the family. From the age of nine until you reached adulthood, you were regularly beaten by your father. You have recollections of daily arguments and fighting between your parents. However, you harbour no resentment towards your father who died in 2012.
31You instructed Ms Ferrari that you were a victim of sexual abuse by a paternal uncle as was your eldest sister. You instructed that the abuse commenced when you were aged around 13 years and continued for a period of approximately 2 ½ years. You disclosed this abuse to your father who dismissed you and told you not to worry. However, when your sister disclosed the abuse that she had suffered, your father then believed you and forbade your uncle from attending the family home. You instructed Ms Ferrari that this uncle is also dead and that you, in accordance with your religion have forgiven him for his abuse of you and your sister.
32Your family placed a strong emphasis on success and education, and you were also pressured into the practice of the Muslim religion. You reported to Ms Ferrari that you have close relationships with your mother and elder siblings and maintained contact with them by telephone while you were in detention as they remain in Pakistan.
33The emphasis placed on education is reflected in Exhibit 4,education and work certificates upon which you relied that includes certificates from the University of the Punjab, the Holmes Institute, the University of Central Punjab and the like. You attended all-boys primary and secondary schools in Pakistan and completed a Bachelor of Commerce and Master of Business Administration specialising in logistics and supply whilst living in Pakistan. You relocated to Australia in 2015 to complete further studies and completed a Masters’ degree in Professional Accounting and a second Master of Business Administration, commencing those studies at the Southern Cross University before transferring to the Holmes Institute. You instructed that the move to Australia was prompted by the status given to overseas degrees in Pakistan. Prior to leaving Pakistan you were a key account manager in an American telecommunications company and prior to your visa being cancelled you had commenced the role as an assistant tax accountant with a firm in Melbourne.
34Your arranged marriage took place in 2017 and initially on being informed of your offending your wife considered leaving you, however, she is now supportive of you and wishes you to return to Pakistan so that you can start your life together and have a family. You last saw your wife in Pakistan when you travelled there in June in 2018. However, after your arrest and subsequent detention, your mother and wife travelled to Australia to visit you. After your marriage and until your time of arrest, your wife was keen to travel to Australia to be with you. However, you were resistant to this as you lived in shared accommodation with a number of men of a similar background and regarded the accommodation as unsuitable for your wife.
35By reference to Exhibit 3 each of your referees are shocked by your conduct and write as to the shame and depression which you experience as a result of your offending and explain that this in part arises from your own experience as a child. There is little doubt that you have brought shame upon your family and you feel this shame acutely.
36In addition to the evidence you gave on the plea, you wrote a letter to the Court which forms part of Exhibit 3. You profess to have learned from your mistake. You express insight into the consequences of your conduct on your victim. You describe the shame which you feel and apologise for your victim. The contents of your letter are consistent with the evidence that you gave on the plea.
37As to your mental health and medical history, you denied any history of mental health issues preceding your current situation to Ms Ferrari. You presently experience depression and anxiety and you were prescribed Mirtazapine for the past year whilst in detention. You denied any history of deliberate self-harm or suicide attempts but admitted to occasional suicidal thoughts. As suicide is prohibited by Islamic law, you instructed Ms Ferrari that you would never act on your suicidal thoughts. During your period in detention you have been stood over and threatened on occasion. On one occasion you were hit in the face and mentioned it to an officer and since that time you have been regarded as “a dog” by other detainees.
38Ms Ferrari conducted a number of self-reporting psychometric tests and formed the opinion that as a result of those tests, you were experiencing symptoms of Major Depression Disorder and post-traumatic stress prior to and post your offending. Further, Ms Ferrari opined that [your] behaviour:
“… can be partially attributed to his severe depression and anxiety symptoms at the time of the offending in the context of adjustment issues and significant stress which caused mood disturbance and impacted his decision-making and judgement, resulting in uncharacteristic behaviour [sic].”
39I am not prepared to act on the opinion of Ms Ferrari in respect to your state of psychological health at the time of your offending based on an interview that occurred some 2 ½ years after the event. This is particularly so as you have no history of mental health issues preceding your current situation. Accordingly, there is no material that predates your offending that permits Ms Ferrari in combination with her psychometric testing to form an opinion as to your mental health and state of mind at the time of your offending.
40Ms Ferrari assessed you in respect to any future risk of sexual offending and assessed you using the Sexual Violence Risk-20 test as being a low risk of future sexual offending. I accept that imprisonment would likely weigh more heavily on you than a person who does not suffer from a Major Depressive Disorder and Post-traumatic Stress Disorder. In addition, there is little doubt that you will experience ongoing stress and anxiety due to your isolation from your family in Pakistan particularly your elderly mother and your wife. I take this into account when arriving at an appropriate sentence in your case.
41Ms Karapanagiotidis on your behalf submitted that you have very good prospects of rehabilitation because of your lack of prior criminal history, your acceptance of responsibility for your conduct and its consequences upon your victim and your expressions of remorse. Further, she relied upon your education and work history, continuing family contact and support and the assessment made by Ms Ferrari that you are low risk of general offending and sexual offending in the future.
42As against the matters relied upon by your counsel, your conduct was opportunistic. You preyed upon a young girl who was adversely affected by alcohol. When questioned by police you made denials and falsely asserted that your victim initiated and was an active participant in the limited sexual activity described by you. You maintained your denials in the second record of interview when presented with the DNA evidence. You ran a contested committal. These matters depreciate to some extent your expressions of remorse, shame, and sorrow. In turn, they impact upon your prospects of rehabilitation. However, on balance I find that your prospects for rehabilitation are good.
43I regard your offending as a serious example of offending of its kind. To my mind, despite the opinion of Ms Ferrari, I regard you as an appropriate vehicle for the application of the principle of general deterrence. Your conduct must be publicly denounced, and you must be justly punished. Your conduct has had a profound effect on your victim, and I am of a view the effects on your victim will be long lasting upon her.
44Your period in detention will result in a lower sentence than otherwise would be case.
45My interpretation of the standard sentence legislation is that I am required to identify fully the facts, matters and circumstances which bear upon the judgment which I have reached as to an appropriate sentence in your circumstances. I have endeavoured to do this in the reasons set out above.
46Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you to 5 years’ imprisonment and I fix the period of 3 years’ imprisonment as a period that you must serve before you will become eligible for parole.
47I declare that you have spent 44 days by way of pre‑sentence detention not including today.
48Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 7 years’ imprisonment with a non‑parole period of 5 years’ imprisonment.
49Is there anything arising out of that sentence?
50MS MARGARONIS: Only two matters, Your Honour, there's a disposal order.
51HIS HONOUR: Sorry?
52MS MARGARONIS: There's a disposal order.
53HIS HONOUR: Yes, that will come next. But is there anything arising out of the sentence?
54MS MARGARONIS: Yes, not from the sentence.
55HIS HONOUR: No. There was an application for a disposal order, which I have made and I will hand down a copy.
56We can break the link with the prisoner, please.
5712.30.
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