Director of Public Prosecutions v Bacash

[2024] VCC 1946

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case Nos. CR-21-01468
and CR-22-00513

DIRECTOR OF PUBLIC PROSECUTIONS

v

KARL BACASH

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2024 (Plea)
DATE OF SENTENCE:	26 November 2024
CASE MAY BE CITED AS:	DPP v Bacash
MEDIUM NEUTRAL CITATION:	[2024] VCC 1946

REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW

Catchwords:   Plea after trial – guilty verdicts - Rape – sexual assault – plea indictment – handling stolen goods – possess drug of dependence – morphine  – photo board identification – search warrant – victim impact statement – psychological report –anxiety and depression- major depressive disorder post charge- mother’s ill health – carer – prior good character – separation from ill mother whilst in custody – average risk of reoffending – delay – general deterrence – just punishment – denunciation – no sex offender registration

Legislation Cited:         Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Markovic v R; Pantelic v R [2010] VSCA 105; Morin v R [2019] VSCA 301; Tones v R [2017] VSCA 118 Sayer v R [2018] VSCA177; Bowden v R [2013] 44 VR 229;

Sentence:  Total effective sentence of 7 years imprisonment with a non-parole period of four years 10 months; 298 days presentence detention reckoned as time already served under this sentence

Plea indictment – good behaviour bond of 6 months without conviction; ancillary forfeiture and disposal orders made unopposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D’Arcy at Trial Ms M. Sargeant at Plea	Office of Public Prosecutions
For the Accused	Mr A. Halphen	Paul Vale Solicitors

HER HONOUR:

Introduction

1Karl Bacash, you were charged on indictment with one charge, that on 9 April 2017 you raped the complainant, by introducing your finger into her vagina; one charge that on the same date you raped her by introducing your penis into her vagina; and one charge that on the same date you intentionally sexually assaulted the complainant involving an act of touching her breasts while you masturbated.

2You pleaded not guilty to those charges and a trial by jury ensued.  Following the jury’s deliberations, you were found guilty of each charge.

3Each charge of rape carries a maximum penalty of 25 years’ imprisonment.  The charge of sexual assault carries a maximum penalty of 10 years’ imprisonment.

4At the hearing of the plea in mitigation of penalty, you entered pleas of guilty on a second indictment, that is, you pleaded guilty to one charge of handling stolen goods which carries a maximum penalty of 15 years’ imprisonment; and one charge of possess a drug of dependence, namely morphine, which carries a maximum penalty of one year imprisonment and/or 30 penalty units.

5In the course of the plea in mitigation of penalty the prosecution relied on the following exhibited documents, in addition to the evidence adduced in the course of your trial:

·        Victim Impact Statement of the complainant dated 18 October 2024 (Exhibit A);

·        Amended Summary of Prosecution Opening dated 26 October 2024 (Exhibit B);

·        Prosecution Submissions on Plea dated 24 October 2024 (Exhibit C);

·        pictures of morphine ampules (Exhibit D).

6In addition to the matters developed in oral argument your counsel relied on:

·        Defence Revised Outline of Plea Submissions dated 29 October 2024 with Annexure A – list of relevant cases (Exhibit 1);

·        Psychological report of Mr Jeffrey Cummins dated 18 October 2024 (Exhibit 2);

·        Bundle of medical documents relating to the accused (Exhibit 3);

·        Two bundles of medical documents relating to Sonia Bacash (Exhibit 4); and

·        A bundle of character references (Exhibit 5).

7I have taken all exhibited documents into account, as well as having read all cases, and have had careful regard to the matters developed in oral argument.

Circumstances of the offending

8In relation to the matters which proceeded to jury trial, evidence was adduced which indicated that in April 2017 you used a particular mobile telephone number ending in 255 and you then drove a particular 2006 Nissan X Trail SUV 4WD car.

9As you told police in your interview, which was Exhibit 15 at trial, all your life you had driven hundreds, thousands, of people home from a night out (Answers – 22, 39, 106 to107). It could be somebody that needed a lift or a friend of a friend, and you had worked in hospitality but more recently you were with your mum 24-seven and the one night you would have out you would go and visit friends that were, for instance, working outside a club and say hello (Answer 127), and after you stopped talking to the host or the door person, if you saw someone that was somewhere a bit odd or late at night, you would stop and ask if they were alright and would ask if someone was going to pick them up, and if not, (and in a lot of cases they were not being collected), you would tell them, 'Let’s go, I’ll drive you home.' (Answer 127 to 133) Afterwards, you told police you would add them on Facebook or exchange numbers (Answer 141 to 148), and then later message them. You told police that the areas you would like to go to your whole life had been Fitzroy, Richmond and Prahran (Answer 173).

10On the day of your offending, in the early hours of Sunday 9 April 2017, your complainant, was 26 years of age (Transcript 21) and lived at an address in Noble Park.

11On the evening of Saturday 8 April 2017, she went to the city with her friend to a restaurant for a meal and they later drank at another venue in Fitzroy (Transcript 22 to 23). She drank a significant amount of alcohol during the evening (Transcript 22 to 26).

12Shortly after midnight the women caught an Uber to the Corner Hotel in Richmond. At 12.28 am the complainant’s phone connected with a Richmond tower. By this time she was very intoxicated (Transcript 26). At the Corner Hotel she drank more alcohol, including shots, and socialised (Transcript 27).

13Between 1.00 and 1.30 am on the morning of Sunday 9 April, her friend left the Corner Hotel (Transcript 198 to 199, Exhibit 2). At 1.31 am the complainant, using her mobile phone with a number ending in 224, messaged the friend on Facebook Messenger asking where she had gone.

14In the hours following 1.30 am, the complainant sent a number of messages to  various friends, copies of which were exhibited in your trial. They were largely indecipherable, consistent with her state of intoxication. She had few memories from this period but believed she left The Corner at about 2.30am, maybe 3.00 am, but could not remember leaving (Transcript 30). I accept that by this stage of the evening she was very heavily intoxicated.

15The prosecution case at trial was that at a point prior to 3.08 am, you picked the complainant up in your car and drove her towards her Noble Park home.

16From 3.08 am to 3.13 am, the complainant tried to call a friend and messaged friends. She could not remember doing so, again consistent with her state of intoxication (Transcript 58 to 59).

(a)   At 3.08 am the complainant unsuccessfully called a male friend. Her mobile phone connected with a cell tower in the Toorak area.

(b)   Between 3.10 am and 3.13 am, she sent messages to this same friend which were indecipherable.

(c)   At 3.12 am she sent an incoherent message via Facebook Messenger to the friend that was with her earlier in the evening (Exhibit 1).

17At 3.11 am, your car connected with the Toorak Road toll point on Citylink driving east.   

18Between 3.22 am and 4.24 am,[1]your car was stationary at a location in a service road off the Princes Highway, near the intersection of Howden Street, Oakleigh, as confirmed by an image on the location data extracted from an App on the complainant’s phone on the morning after.

[1]Based on the complainant’s mobile phone location service

19The complainant testified that she woke up in the front passenger seat of a man’s car (Transcript 30), which the jury accepted by their verdict was your car, with you sitting in the driver’s seat. The car had stopped (Transcript 31). She did not know how her underwear had been removed, but it had. You leant over from the driver’s seat and put your hand under her dress and placed one or two fingers inside her vagina (Transcript 32), which is the offending the subject of your Charge 1 of rape. You used one hand while you fondled her breasts with your other hand over her clothing. The complainant could not remember if she was awake or asleep as she had no conscious memory before that. She did not consent to the sexual penetration as she was asleep or unconscious at the time of the offending (or was otherwise so intoxicated) as to be incapable of consenting (Transcript 33).

20You got out of the driver’s side of your car and went to the front passenger side (Transcript 34). The complainant remained in the front passenger seat. You entered the car, got on top of her in the reclined seat, inserted your penis into her vagina without her consent (Transcript 35). This is the offending the subject of your Charge 2 of rape. After two or three thrusts your penis became flaccid, and you removed it from her vagina (Transcript 36).

21While still astride her, after you had lost your erection, you masturbated your penis while you grabbed her breasts over her clothing without her consent (Transcript 42 to 43). This is the offending the subject of your Charge 3 of sexual assault. You did not regain your erection (Transcript 43). The complainant said something like, 'Let’s go. We should go home,' and you got off her and returned to the driver’s seat (Transcript 43).

22You drove her to her home to Noble Park. About 4.59 am the service connected with her phone number was used to call your phone number. There was no answer. The prosecution alleged at trial that that call was done by you to obtain her number. At the time her phone connected to a cell tower in or near Noble Park.

23You helped her walk from your car into her Noble Park apartment. She was confused (Transcript 44). She asked you if you were an Uber driver and you said you were not (Transcript 45). You followed her into her apartment where she took out her contact lenses and she asked you to leave, which you did (Transcript 45).

24At 5.05 am, you used your mobile number to call her mobile number twice.

25Between half past five and 11.00 am, the complainant slept, vomited and felt horrible (Transcript 68). She then noticed her underwear was in her handbag (Transcript 68 to 69). When she went to the toilet her vaginal region was painful. She noticed bruising to the inside of both her thighs.

26That morning and in coming days the complainant messaged a number of friends, disclosing details of the events referable to your charges.

27On Monday 10 April, or Tuesday 11 April 2017, she spoke with her mother about what happened and was encouraged to see a doctor, which she did, on Wednesday 12 April 2017.

28At 2.06 am on Saturday 16 April 2017, you sent a text message from your 255 number to the complainant’s phone number stating, 'Are you out and about?'. She did not recognise the number.

29On Sunday 23 April 2017, you rang her number from your 255 number. She did not answer. On Sunday 30 April 2017, you rang her number. She did not answer, and she then blocked your number.

30She was initially reluctant to go to police. On 9 April 2019, she met with police and made a report of what happened on 9 April 2017.

31You were arrested on 26 February 2020 and your phone was seized and later analysed.

32From about 9.12 pm on 26 February 2020, you were interviewed by police. In summary, in addition to the matters I have earlier summarised, you said:

(a)   You had never driven anyone home without exchanging numbers or adding them to Facebook. (Answers 55, 158 to 170, 267, 285 to 299, 312 to 319).  You have never been forward. If things happen, they happen. (Answer 71 to 74).  Sometimes the women that you gave lifts to were intoxicated and you helped them home. (Answer 210 to 219).  You have been with some girls where they have suddenly become touchy-feely as you had driven them home. You are only human, you said. It has always been two-ways and consensual (Answer 124, Answer 220 to 224, 234 to 244).  You said with some girls who are drunk they wake up and they do not remember if it was consensual. (Answer 127, 225).  If they send a message indicating it was a one-off, you say no problem. (Answer 150) You are very polite and cautious. (Answer 176).

(b)   You told police you did not deny taking someone to Noble Park. (Answer 33). Her name and her face, you said, did not ring a bell. (Answer 39, 50, 60, 64).  You did not deny driving her home to Noble Park, but you said you had no recollection of it at all. You did not remember pulling over into a service lane on the Princes Highway. (Answer 111, Answer 370.) You did not remember putting her contact in your phone. (Answer 271 to 272).  You could not remember her phone ringing yours, or you sending her a text. (Answer 274 to 285, Answer 320 to 331).

(c)   And you accepted that you drove the silver Nissan X-Trail with the particular registration number.

33Your phone was examined by police. The complainant’s phone number was listed as a contact, and there were texts to her number which I have summarised.

34Photos were taken by police of the location identified in the complainant’s phone records as where she had been stationary between 3.22 and 4.24 am on the morning of your offending.

35On 21 March 2020, she participated in a photo board identification process and nominated a photo at position seven or one, she said mainly seven, as the man who drove her home on 9 April 2017 and raped her. Your photo was at Position 7. She had previously discussed features consistent with your complexion and age with her mother and gave a physical description of the offender who had an appearance consistent with yours, in her evidence.

36Turning to the plea indictment.

37On 11 May 2020, police executed a search warrant at your address. In your bedside drawer police located five ampules of DBL morphine sulphate injections. This is the offending referable to your charge of possess drug of dependence. The ampoules contained liquid that had not been broken or opened and the pharmacy sticker had been scratched off so no details regarding who the morphine was prescribed to could be seen.

38During the execution of an earlier unrelated search warrant on 22 February 2018 at your address, police located an ANZ bankcard in the name Serena De Comarmond in a small open box on top of a glass top desk in your bedroom. This is the offending referable to your charge of handle stolen goods. The owner of the card told police that she could not recall losing the card and had not authorised anyone to use it or be in possession of the bankcard.

Effect on the victim

39I have the benefit of a victim impact statement prepared  the complainant in respect of your trial charges.  It is a powerful and articulate explanation of how your offending has impacted upon her, and it is difficult to do justice to the delicate framing of that statement without reading aloud, which is what I have decided to do.

40In describing the emotional impact of your offending upon her, she told me as follows:

“In the months following the assault I was depressed and anxious. I had frequent panic attacks and was extremely anxious, especially when I left my apartment or when I saw a bald man who reminded me of the perpetrator. I was terrified of catching taxis or Ubers and being in crowded places. In the first few months after the assault, I felt like a burden on my friends, family and everyone around me due to my depression and anxiety, and I thought it would be easier on everyone if I wasn’t alive.

I was a university student at the time, and due to my poor mental health, I failed two units at university that semester. That meant I no longer had the grades required to be accepted into postgraduate medicine, which was what I was planning to do after finishing my undergraduate degree. My poor grades and failed units made me feel like even more of a failure, and I had to do a lot of work with my psychologist and my family to feel like I was worthwhile if I didn’t do well at university, and so I chose another career path instead.

Eventually, I started to feel a little bit more like myself again, however, there was still a lot of underlying anxiety. To this day, I haven’t been able to date or have romantic relationships with men at all. This trial has been extremely long and drawn out due to Covid, which has also been very stressful. Giving evidence in court felt like I was reliving the assault, and after giving my evidence, my paranoia, panic attacks, and anxiety returned, and I was diagnosed with post-traumatic stress disorder. I was scared to leave my house again, and I had to take time off work due to anxiety, poor concentration, and lack of sleep”.

41She described your offending as having impacted financially upon her in multiple ways.  She has borne the expense of years of counselling, physiotherapy and osteopathy appointments.  She missed work during the trial, and also after the trial, due to time taken to recover form psychological setback.  Socially, your offending has left her too afraid to date, to get into a relationship with a man during the process of recovering from your offending. 

42I accept and take into account that you have caused her lasting significant distress and trauma. 

Plea of guilty in respect of Indictment L11124282B.1

43I understand that liability for your offences of handle stolen goods and possess drug of dependence has never been an issue, and I am prepared to infer your willingness to enter a plea of guilty to these charges at the earliest possible stage.  I significantly mitigate penalty on those charges on this basis.

Personal circumstances

44In summarising your circumstances, I have had the benefit of not only careful submissions from your counsel but also an assessment and report by Jeffrey Cummins, psychologist, medical records and a bundle of references, each of which I have read carefully.  I have also received medical reports in relation to your mother’s health, illuminated by oral evidence from one of your brothers, to which I will return.

45You were born in Melbourne in April 1964.  You were 53 years of age at the time of your commission of the offences against the complainant and were slightly older at the time of committing the offences the subject of the second indictment.  You are now 60.

46Your parents separated when you were aged seven to eight, which you later learned was due to your father remarrying.  Your father provided some financial support for your mother in her care of you and your two brothers and I understand that he would often arrange for her to be sent back to Lebanon, where she was supported by her brothers.

47You and your mother share an extremely close relationship dating back to childhood. 

48Your father died of prostate cancer in 2007 at the age of 78.

49You have two older brothers: Asar is aged 65 and Leslie is aged 62.  Asar previously worked in the banking industry but is now periodically employed assisting foreign students to settle in Australia.  Leslie was diagnosed with multiple sclerosis in his late teens, as a result of which he was medicated with excessive doses of cortisone which led to organ damage and as a result he has been in and out of hospital for most of his life.  You are very close to both your brothers.

50You attended St George’s Primary School in North Carlton and then St Joseph’s Marist Brothers College in Fitzroy, achieving a Year-10 pass.  You then attended Redden College for part of Year 11.  From 1980 to 2019 you worked in your father’s travel agency trading as Jet International Travel.  You took over your father’s business in 1995 and your work in this business continued until the business closed in 2019 as a result of your decision to devote your time to looking after your mother.

51You have never married, and you do not have children.

52Since your late teens you have been involved in the nightclub industry as a patron and host.  You have intermittently worked, often unpaid, in a hospitality role in various nightclubs and venues, ending in 2016. 

53You have never consumed alcohol, never abused prescription medication, never experienced any illicit drugs and never gambled.  You have never received mental health treatment. 

54You are a long-term sufferer of chronic neck, shoulder and lower back pain with sciatica and scoliosis.  Your patient health summary report confirms a past history, including an obesity diagnosis, bilateral gynaecomastia, which I understand to be an increase in breast tissue in males, gastro-oesophageal reflux disease, right sciatica and elevated blood pressure.  You are prescribed Perindopril for your elevated blood pressure and Panadol Osteo for your back pain.

55In April 2023 you were diagnosed with anxiety and depression.

56At the time of committing the offences you had no prior criminal history and were a person of good character, to which I attach significant weight in mitigation of penalty.  I have been provided, as I have indicated, with a series of character references from friends and friends of the family who have known you for decades, from your brother, Asar, and his partner, Laura Gionfriddo.

57Clayton Abraham, who first met you while he was working at the Warehouse Nightclub in South Yarra over 30 years ago, speaks of your long history of friendship; the personal hardship he considers you have experienced since your arrest, the fact he finds it impossible to believe the allegations made against you, in that they are out of your general character, your kindness, your general reputation as a man of great integrity, respect and morals, and your caring nature.

58Maryanne Leon also finds it hard to comprehend the guilty verdicts against you.  She told me that you experienced significant grief in 2003 as a result of the loss of your best friend, followed by your father in 2007.  In her opinion, one feels comfortable around you as there is no hidden agenda.  In her view you are the nicest guy one could meet, who enjoys the company of friends and meeting new people.  She considers you to be a very loyal and devoted friend. 

59Vera Traikovski also told me of your grief at the loss of a number of friends and your father.  She describes you as always reliable and a designated driver, a person who would pick her up from home along with friends and on many occasions would also drive her and friends’ home at the end of their nights out.  She has never seen you act in an inappropriate manner.  She describes you as having a caring nature with a stand-up reputation.

60Gabrielle Fakhri has also expressed her shock at the verdict at trial.  She describes you as dedicated to the care of your mother and amazing in your assistance to their family, including to her 52-year-old severely disabled son, including by you doing lots of handyman jobs and gardening, some painting, cleaning out the shed and lots of other jobs she has been unable to carry out on her own.  She knows you also help other people when you visit them.

61Maan Bashour has been a friend of your family for 40 years.  He describes you as always well mannered, good company and attentive to any person’s needs, with a huge circle of friends.  The guilty verdicts are in contradiction of what he knows of you, how you behave with people, the respect you show people and your essential character of always being available to help anyone needing any kind of assistance.

62Vicky Barile describes you as hardworking, well-mannered and entertaining, a person with whom everyone always felt safe and a pillar of support when her marriage broke down.  She describes you as having a very noble reputation among your friends and the community, and a person you reach out to in difficult times, who never refused to help.

63Your brother, Asar, who also gave evidence in your plea in mitigation, describes the responsibility of care that you assumed for your mother.  I understand that in 2003 your mother, Sonia Bacash, was diagnosed with a benign tumour of the pituitary gland, which was removed in a successful operation.  In the 20 years which have followed the procedure led to a number of side effects, permanent loss of antidiuretic hormone, which led to diabetes insipidus, treated with hormone replacement; permanent loss of thyroid-stimulating hormone, which led to hypothyroidism; permanent loss of the adrenocorticotropic hormone, which led to loss of cortisone production from the adrenal gland; and damage to part of the optic nerve, which led to partial visual field loss on both sides.

64You have always lived with your mother and have never moved out of home or lived with a partner.  Since her procedure in 2003 you have shown enormous commitment to ensuring that she is well cared for and your brother Asar has told me that you did what you had to do to keep your mother out of a nursing home, without complaint.  He describes you doing the most superb job of caring for your mother.  Your brothers have experienced significant difficulty providing even a fraction of the level of care that you have been able to provide to her.

65Your mother’s needs are clearly complex, and I note the letter of Dr Ing Sing Kim Chiew, dated 20 November 2023, wherein it is confirmed that between 7 February 2005 and 20 November 2023, you have taken your mother to their clinic or represented your mother on telephone consultations a total of 1,890 times, or approximately one hundred times per year.

66Your mother has written me a letter and she confirms how caring you have been of her, and it is plain to me that your inability to care for her as a result of being remanded into custody on guilty verdicts on these offences, weighs very heavily upon you.  It is clear, as admitted by your brother Asar in his evidence, that the previous level of care you were able to provide was far superior than the care she currently receives from your brothers.

67I accept and take into account in mitigation of penalty, your prior good character, as I have mentioned, and your physical and medical conditions, which will mean that the sentence of imprisonment will weigh more heavily on you than a person who lacks those physical conditions, and also your anguish at being unable to care for your mother in the way in which you have been accustomed for decades.  I am satisfied, as your counsel has urged, that in particular your separation from your ageing mother will make the experience of imprisonment more burdensome upon you by reason of weighing so heavily on your mind.[2]

[2]Markovic v R; Pantelic v R [2010] VSCA 105 at paragraph [20]; Morin v R [2019] VSCA 301 at paragraphs [46]-[51]

68Jeffrey Cummins, consulting clinical and forensic psychologist, interviewed you and assessed your risk for committing a further sexual offence.  In administering the STATIC-99R, a quantitative assessment tool which addresses 10 historical risk factors, in his assessment of your risk of committing a further sexual offence, the factors which led to a conclusion that you were of average risk included the fact that you have never lived with a lover for at least two years; the fact that you have now been found guilty of three charges of sexual offending and the fact the victim was unrelated to you and was a stranger victim.

69In administering the RSVP (Risk for Sexual Violence Protocol), he observed that you have been found guilty of offending relating to one date and therefore there was no chronicity to your sexual offending.  There was diversity and escalation to your offending, and it represented an abuse of power. 

70Mr Cummins took into account that the jury has determined you had sexual contact with the complainant under circumstances where she was incapable of consenting by virtue of her state of intoxication.  Mr Cummins concluded, as far as he could ascertain, that around the date of offending you were not suffering from a major mental illness, and you have never had a problem with substance abuse and have never engaged in suicidal or violent ideation.  You told him that you have never had problems with intimate relationships because you have never felt a need or desire to have, or maintain, an intimate relationship.  You reported to Mr Cummins never having problems with non-intimate relationships, which here I interpolate is borne out by the reference material. 

71Mr Cummins questioned you concerning whether you thought your emotional attachment to your mother had interfered with your decision not to seek a long-term intimate relationship, and he notes you responded by saying you felt very comfortable with your own company and being a single person, and told him that over the years you intermittently had casual sexual contact with age-appropriate females.

72After being interviewed by police, Mr Cummins observes your mental health began to deteriorate and you immediately went into a state of shock, disbelief, depression and anxiety, for which no treatment was sought.

73In Mr Cummins’ opinion, you are now diagnosed with a major depressive disorder which developed when you were first arrested and charged and which has been exacerbated as a result of you being found guilty and further exacerbated as a result of your remand.  You continue to deny any sexual contact with the complainant.

Objective gravity of your offending, moral culpability

74I am, of course, familiar with the evidence adduced at trial and it is now my obligation to evaluate your conduct consistent with the jury’s verdicts of guilty on your two charges of rape; one involving digital penetration of the complainant, one involving insertion of your penis into the complainant’s vagina, and a charge of sexual assault by grabbing the complainant’s breasts over her clothing while you masturbated your penis.  The evidence establishes that at a point prior to 3.08 am, you picked the complainant up in your car at an unknown location somewhere between the Corner Hotel in Richmond and the Toorak Road toll point on Citylink. 

75At this time, the complainant was very heavily intoxicated. 

76Between 3.22 am and 3.24 am your car was stationary at a location in a service road, off the Princes Highway near the intersection of Howden Street, Oakleigh.  I find that the offending took place during this period.  I consider that her state of intoxication would have been readily apparent, and I accept her description that she was asleep or unconscious at the time of offending or was so affected by alcohol as being incapable of consenting, which was the basis of directions given to the jury as the path of reasoning that the act of penetrating her vagina with your finger was non-consensual. 

77You then moved from the driver’s side to the front passenger side, entered the car and climbed on top of the complainant, inserted your penis into her vagina, aware that she was asleep or unconscious or otherwise so intoxicated she was incapable of consenting, but you lost your erection after a couple of thrusts. In doing so, you exposed her to the health risks that accompany the act of placing your penis into her vagina.

78Whilst you were on top of her, there was a further violation of her by your act of masturbation while you touched her breasts.

79Your offending involved two callous penetrations of a vulnerable woman’s vagina while she was asleep or intoxicated to the point of unconsciousness, or she was otherwise so intoxicated as to be incapable of consenting, and then you touched her breasts.  She was isolated and vulnerable as a result of her state of intoxication, and also as a result of her location in the passenger seat of your car on the side of the highway in the early hours of the morning.

80Though at trial it was suggested and submitted by the prosecution that any admitted act of driving women or girls not previously known to you could be seen as predatory, I will indicate that I am unable to infer and conclude beyond reasonable doubt that at the time of picking up the complainant you had any sinister intent. I am unable to say one way or the other.

81I therefore find that the sequence of offences may be viewed as somewhat spontaneous and opportunistic, though the decision to pull over on the side of the road for an hour and two minutes and subject the complainant to three separate sexual offences in that period of time, involved significant predation upon her vulnerability.

82You had at the relevant time placed yourself in a quasi position of her carer, given her state of intoxication and your decision to drive her home.

83The offence of rape is always serious.  You have committed two acts of rape as well as a sexual assault.  While relatively brief in the duration of each action, they have left a legacy of trauma on your victim.

84I accept your counsel’s submission that some of the aggravating features present in other cases are absent in your case in that the complainant did not experience a protracted physical ordeal, you did not cause her significant physical injury, there were no ancillary aspects of degradation or humiliation apart from the charged offending itself, and there was no violence employed beyond the level of force required to effect penetration in respect of Charges 1 and 2.

85The offending is out of your general character, and unfortunately I have not been assisted by Mr Cummins’ expertise in respect of your motive for offending or acceptance in you of any danger and threat to women entitled to feel safe while intoxicated on evenings out, as you continue to deny the offending.  In your police interview, though the complainant’s number was found in your phone and there was telephone contact between your mobile number and her mobile number on the morning of the offending, consistent with the telephone connecting with a cell tower in Noble Park, and subsequent text messages sent by your number to her number,  with subsequent attempted telephone contact by you, you told police that you did not remember the victim.

Sentencing principles - sentencing submissions

86There has been a long period of delay between your commission of these offences in April 2017 and today’s sentence.  The matter has been hanging over your head in the meantime and the only offences committed are the offences of relatively modest nature compared to your trial indictment which appear on your plea indictment.  I accept your counsel’s submission that delay is a significant mitigating factor in your favour in that the charge, or the prospect of such a charge, has been hanging over your head and has caused you to experience significant anxiety.  You have also made progress towards rehabilitation from your sexual offending, which, as I have mentioned, is out of your general character.[3] 

[3]Tones v R [2017] VSCA 118 at paragraph [36]

87I mitigate sentence on the basis of delay as submitted.

88I accept the prosecution submission that the sentences I am obliged to impose must reflect the need for general deterrence, just punishment and denunciation.  Given your lack of prior criminal history and good character, your general lack of subsequent matters, the support of your family and friends, and the salutary effect of these court proceedings, I am prepared to infer, as your counsel submits, that your prospects of rehabilitation are perhaps good.  Having said that, the reservations I must express in relation to this evaluation are those as submitted by the prosecution.  You have no insight into your offending and have avoided engagement with the circumstances which so significantly support the jury’s verdict of guilty on each charge.  There is a strange lack of ability in you to understand and appreciate that driving heavily intoxicated women home, where they are not previously known to you, may be seen as predatory, not necessarily of any particular sexual offending, but at least in relation to a danger that may haunt women who are alone at night.

89Like the prosecution, I consider that specific deterrence and community protection have less significance in the sentence I must impose in your case.

90Your Charges 1 and 2 on the trial Indictment, each of rape, are Category 1 offences and a custodial sentence is required.  Those charges are Class 3 offences for the purpose of the Sex Offenders Registration Act 2004 (Vic).

91The prosecution has sought orders for your registration, and I may only make an order under that section if, after taking into account any matter I consider appropriate, I am satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons, or of the community.  Your counsel has helpfully taken me to the propositions I must consider in determining whether to make such an order,[4]

'(a) The inquiry whether to make a registration order involves a two-stage process.

(b) The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.

(c) For the court to be so satisfied, the risk must be real rather than fanciful.

(d) The evaluation of risk is directed to the risk upon the offender’s release into the community, assessed by what is presently known.

(e) The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.

(f) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender’s right to enjoy freedom and autonomy of action.

(g) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.'

[4]Sayer v R [2018] VSCA 177 at paragraph [92]; citing Bowden v R (2013) 44 VR 229 at paragraphs [38] and [42]

92In Bowden,[5] the Court of Appeal stated that:

'… The court should not make a registration order in respect of an offender who has committed a Class 3 … offence unless there is no reasonable doubt that the offender poses … or will pose on release … a real risk to the sexual safety of one or more persons or of the community. … .

…

… The obligation on the sentencing judge, when exercising this discretion, is to impose the registration obligations under the Act when and to the extent that are reasonably necessary to give effect to the statutory purpose.'

[5]Bowden v R (supra) at 238-9, paragraphs [38] and [42]

93The prosecution has relevantly submitted that you pose a risk to the sexual safety of the community having regard to the nature and circumstances of the offences you have committed, your utter lack of insight into the offending and the lack of remorse, the fact that you have told Mr Cummins that you would decline to participate in any offence-specific programs in custody and that you are confident you do not require mental health treatment.

94Your counsel has submitted that I could not be so satisfied beyond reasonable doubt. 

95A lack of remorse by no means aggravates your offending in any way – you have a full entitlement to plead not guilty to the charges, and in respect to the sentence I must impose, it has no bearing on disposition or length.  However, your continued denials of risk in the context of the admissions that you made in your interview to driving intoxicated women home and on occasions even perhaps having sex with them, concerns me.

96Ultimately though, having regard to the high standard of proof of beyond reasonable doubt, of which I must be satisfied you pose a risk to sexual safety, in all of the circumstances of the case including your prior good character and the factors to which I have periodically referred in mitigation of penalty, and the fact that though you have been found guilty of three offences, they were committed in, effectively, a single event, notwithstanding some misgivings, I find that I am unable to be satisfied beyond reasonable doubt of the preconditions of s11(3) and I decline to register you in the exercise of my discretion. There is no necessity for me to consider the second stage of that process as a result of that finding.

97I have had careful regard to the totality principle of sentencing, and in my view, while each offence involves a separate, deeply intrusive and traumatic violation of the complainant’s safety and privacy, they are so linked in time, in identify and in purpose, that a significant measure of concurrency needs to be afforded to you.

98Your counsel has helpfully provided me with a number of decisions of the Victorian Court of Appeal reviewing the appropriateness of sentences imposed by judges of this court on charges of rape involving some similar circumstances (and some different circumstances).  I am, of course, familiar with sentencing standards applicable to the offending which predates the application of the standard sentencing regime and have read and considered those cases closely.

Sentence

99I now pass the following sentences. 

100On the trial indictment:

·        On Charge 1 of rape, you are convicted and sentenced to four years and nine months’ imprisonment, 12 months of which I order be served cumulatively upon the base.

·        On Charge 2 of rape, you are convicted and sentenced to six years’ imprisonment. This is the base.

·        On Charge 3 of sexual assault, you are convicted and sentenced to 18 months’ imprisonment, to be served wholly concurrently.

101This is a total effective sentence of seven years' imprisonment, and I order that you serve four years and 10 months before parole eligibility.

102On the plea indictment, if you are willing to be of good behaviour on the charges of handle stolen goods and possess drug of dependence, I am prepared to release you on an undertaking for a period of six months.

103Mr Bacash, are you willing to enter into a promise to be of good behaviour for six months on those two charges.

104ACCUSED:  Yes, Your Honour. 

105HER HONOUR:  Yes, thank you very much.  I will impose that order.

106Now, I'll just ask, may I please make the ancillary orders of forfeiture and disposal as requested by the prosecution without objection by the defence.  I can make them on another occasion otherwise.

107MR VRECH:  Those can be made now, Your Honour, those are my instructions.

108HER HONOUR:  Yes, I inferred as much.  I will make those ancillary orders as requested.  We'll just mute the link again because of the feedback.  Next is pre-sentence detention please.

109MR VRECH:  Your Honour, the calculation is 298 days.

110HER HONOUR:  298 days reckoned as served.  Mr Vrech, would you mind just refreshing my memory; there were no other declarations sought, for instance under serious sexual offender's provision, because they were all committed on the same occasion.

111MR VRECH:  That's so, Your Honour.

112HER HONOUR:  And so there's no order sought there.  Are there any other ancillary orders or other declarations that I need to make.

113MR VRECH:  The only other matter that I might raise is whether there's a live suppression order, whether anything needs to be done - - - 

114HER HONOUR:  No, it expired on the verdict in relation to the subsequent trial.  Any other legislative provisions in relation to open courts and limitations of course endure in the background, but there's no proceeding suppression order. 

115MR VRECH:  Nothing further, Your Honour.

116HER HONOUR:  There were two related summary offences which became the indictment offences on the plea indictment.  We will check the orders on the last occasion, but I infer that they are to be withdrawn and struck out, if I haven't already.

117MR VRECH:  The note that I have is that they were withdrawn.

118HER HONOUR:  They were withdrawn and struck out, so there's nothing left on either indictment, and that brings an end to all proceedings against Mr Bacash.

119MR VRECH:  Yes, Your Honour. 

120MR BADGERY:  Thank you, Your Honour. 

121HER HONOUR:  Yes, thank you.  Thank you, we'll adjourn.

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