Director of Public Prosecutions v Bair

[2024] VCC 1479

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01488
Indictment No. P10557659

DIRECTOR OF PUBLIC PROSECUTIONS

V

ALIER BAIR

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2024
DATE OF SENTENCE:	20 September 2024
CASE MAY BE CITED AS:	DPP v Bair
MEDIUM NEUTRAL CITATION:	[2024] VCC 1479

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – rape (5 charges); common assault (1 charge); abduction for a sexual purpose (1 charge).

Legislation Cited:      Crimes Act; Sentencing Act; Sex Offenders Registration Act.

Cases Cited:Gray (a pseudonym v The Queen [2018] VSCA 163; Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 302 ALR 192; R v Verdins (2007) 16 VR 269; Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43; R v Mills [1998] 4 VR 235; De Haas v R [2024] VSCA 141; DPP v Drake [2019] VSCA 293; DPP v Skerry [2020] VCC 1189; DPP v Balcioglu [2024] VCC 506. Defence: DPP v Croft (a pseudonym) [2023] VCC 1243; DPP v Mullins (a pseudonym) [2020] VCC 1257; DPP v Amin [2019] VCC 1756; DPP v Hyde [2019] VCC 712

Sentence:                  Total effective sentence: 10 years and 9 months. Non parole period: 7 years and 9 months.        

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McVean	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D. DeWitt	KPT Legal Defence Lawyers

HER HONOUR:

1.Alier Bair, you have pleaded guilty to the following charges.  Five charges of rape, the maximum penalty for which is a term of imprisonment of 25 years. One charge of common assault for which the maximum penalty is a term of imprisonment of five years, one charge of abduction for a sexual purpose for which the maximum penalty is a term of imprisonment of 10 years and one charge of failing to comply with a direction to assist, which has a maximum penalty of two years' imprisonment.

2.Rape is a category 1 offence and requires a term of imprisonment.  Rape is also a standard sentence offence, the standard sentence being 10 years' imprisonment.  I am required to fix a non-parole period of at least 60 per cent of the total effective sentence.

3.The circumstances of your offending are set out comprehensively in the prosecution opening upon plea.  Briefly stated they are as follows.

4.The victim is Renee Forster.[1]  She was 41 years old at the time of your offending.  She was heroin-addicted and was living in an abandoned car parked in the multi-level carpark in Fitzroy.

[1] A pseudonym.

5.On Sunday 12 March 2023 at approximately 2 am Ms Forster returned to the carpark alone.  She took some heroin.

6.At 3.42 am she is captured on the CCTV walking through the ground floor of the carpark.  She noticed you at this point.  You looked at her but did not speak to her.

7.You were aged 18 years old at the time and you lived at the flats.

8.Ms Forster made her way to the abandoned car she slept in.  She put down her bag and took off her jacket.  She had her phone and her cigarettes in her hand.

9.She was sitting in the middle of the rear passenger seat having a cigarette when you burst into the car, grabbed her around the throat and said you would stab her if she did not do what you told her to do and that is Charge 1 of common assault.  You told her, 'Aussie girls needed to respect African guys'.

10.You tried to take off her clothes and you managed to take off her top which you used to blindfold Ms Forster.  You blindfolded her so tight that it hurt her.  You threatened to stab her if she did not put her hands behind her back and you threatened to kill her if she touched the blindfold.

11.You then pulled down Ms Forster’s pants and your own pants.  You held her around the neck, and you forced her to suck your penis and that is Charge 2 of rape.  Ms Forster says this continued 'for ages.'

12.You then removed Ms Forster from the car.  She was naked from the waist down.  You had pulled up your pants.  You took her to another level of the carpark where there was an abandoned Ford and this is Charge 3, which is abduction for a sexual purpose.  You tightened her blindfold which had become loose.

13.You forced her into the backseat of the Ford and raped her orally for a second time. Your penis was in her mouth and choking her.

14.You then pulled her out of the car and had her or made her climb onto the bonnet of the Ford.  She was on all fours, and you penetrated her vagina with your penis.  Again, Ms Forster describes this rape as lasting a long time.

15.At 4.04 am an unrelated vehicle is depicted driving through the carpark.  In response you moved Ms Forster from the bonnet to the backseat of the Ford and made her refit her blindfold.

16.When she was in the backseat you raped her again orally and vaginally and Charges 4 and 5 are rolled up charges comprising of two instances of oral and vaginal penetration.

17.The total time you and Ms Forster were in the Ford was approximately
35 minutes.

18.At 4.29 am you are depicted on CCTV holding Ms Forster tightly around the body and neck. You forced her out of the carpark.  She was still naked from the waist down, but you had pulled your pants up.  You led her to an apartment block at 210 George Street where there was an enclosed park with a wooden seat and table at the rear of the complex.

19.Here you forced her to suck your penis again and that is Charge 6 and you made her climb on to the table where you again penetrated her vagina, this time until you ejaculated and that is Charge 7.

20.You then ran away.

21.Ms Forster was terrified throughout her ordeal and had been too scared to fight or scream.  When you repeatedly asked her if she wanted to die, she repeatedly said 'no'.

22.Ms Forster ran to the Fitzroy Police Station where she is depicted at 5.09 am knocking on the door without pants and is visibly distressed and screaming 'help me, I've been raped'.

23.You were identified and arrested on 14 March 2023.

24.You were interviewed by the police at 10.20 am on 14 March 2023.  You remained mute throughout most of the interview.

25.You refused to provide police the PIN code for your mobile phone upon request and that is the basis of the summary charge, which is fail to comply with a direction to assist.

26.Ms Forster has not made a victim impact statement.

27.On the gravity and effects on the victim of the offence of rape I have regard to the observations of the Court of Appeal in Gray in which it was said[2]:

“Rape is an intensely personal crime. The effects on the victim are not just those that flow from the physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms. This significant impact of rape on the victim needs to be given proper weight in sentencing; it cannot be overlooked or undervalued.‘

[2]        Gray (a pseudonym v The Queen [2018] VSCA 163 [53]

28.I turn now to consider your personal circumstances.  In outlining your personal circumstances, I refer in the main to the report of Mr Simon Candlish, consultant psychologist who interviewed you on 31 October and 9 November 2023 and who produced a report tendered at your plea and that report was dated 20 November 2023.

29.You were born in April 2004, so you are presently 20 years old.

30.Your family are South Sudanese.  Your family relocated to Uganda where you were born.  You are one of a siblingship of nine.  Two of your brothers were killed in the civil war in Uganda as was your paternal grandfather and your maternal grandmother.  Your family came to Australia when you were only three or four years old.

31.Your parents’ relationship was violent.  There was an occasion when police were called to the family home because your father was attempting to choke your mother.  You told Mr Candlish that your father left the family home and you thought he had returned to Uganda but you later discovered that he was still in Australia.  You told Mr Candlish that your father was not allowed to see the family.  You thought maybe there was an intervention order in place.  You reported a good relationship with your mother.

32.You attended two primary schools and two secondary schools.  You were expelled in 2020 in Year 10.  You were drinking alcohol and smoking cannabis, and you have appearances in the Children’s Court at around this time for offences of assault, attempted robbery, robbery, armed robbery and bail offences.  You told Mr Candlish that you and your friends were getting into fights, using drugs and you would try and rob multiple people.

33.You have a very limited history of employment.  You did some fruit picking when you were 16 years old, and you had a very brief period of employment at a hotel when you were 16.  You have not worked since.

34.You have used cannabis since you were 13 years old.  You were drinking alcohol daily in the two months prior to your offending.  You have tried MDMA, cocaine and Percocet (which is an opioid pain medication).  You tried that once.

35.You told Mr Candlish that you had no recall of your sexual offending because you had taken a pill and had blacked out.  Mr Candlish was of the opinion that your poor recall appeared in part related to shame.  You told Mr Candlish that you felt disgusted by your actions and that your victim would have been 'traumatized and scared'. You said you were angry and frustrated that your friends were progressing in life, but you were not.  Mr Candlish opines that although your reflections on your behaviour were brief, they did appear to be genuine.

36.On your mental health you told Mr Candlish you were distressed when your grandmother died and distressed when a friend suicided in 2022.

37.On your sexual history you said you had had a number of sexual partners from the age of 15.  You denied that you had ever committed any non-consensual sexual acts on a partner.  You denied any negative view of women, including white women.  You denied negative views of white people generally.  When
Mr Candlish asked if you were happy in Australia, you said you did not want to go back to a war-torn country but said there were better places to live and referred to Norway.

38.Mr Candlish conducted a number of psychometric tests.  Based on his testing and his interactions with you Mr Candlish gives the opinion that you appear to meet the criteria for a persistent depressive disorder of mild severity and cannabis use disorder of mild severity in remission in a custodial environment.

39.He did not consider you had a personality disorder but that you had characterological issues, possibly related to your lack of education and possible cognitive issues, which included problems with self-awareness and empathy.

40.He assessed you as a moderate risk of sexual reoffending.  Mr Candlish was of the view that you have developed negative views of women, particularly white women and seemed to sexually objectify white women.

41.On your offending he gives the opinion:

'Mr Bair’s depressive disorder as well as his characterological issues contributed to his substance abuse, and he was more disinhibited at the time.  He appeared to experience anger related to chronic lifestyle issues associated with his substance abuse and poor self-direction.  He disregarded the victim in the context of his anger, disinhibition and feelings of entitlement and limited empathy.  He had strong feelings of sexual entitlement in the context of negative views of women, combined with his anger arousal.  He was aware his behaviour was wrong however his level of disinhibition, anger arousal and negative mood states in the context of social alienation limited his empathy and consequential thinking.'[3]

[3]        Exhibit B, paragraph 114.

42.On the effects of incarceration upon you he states you may experience benefits associated with sustained abstinence but there is a risk of suicide and deterioration in mood in the short to medium term after sentencing.

43.You were also assessed by Jane Lofthouse, clinical neuropsychologist, whose report is dated 6 July 2024.

44.Broadly speaking, her conclusions were that you do not suffer from a developmental disorder such as an intellectual disability.  You were assessed as low/average intelligence with many of your intellectual deficits likely the result of instability and poor education and English being your second language.

45.The psychological testing she conducted was based on self-reporting from you.  The results indicated that you were in the moderate range for depression, extreme range for anxiety and mild range for stress.  She says:

'It would appear that on testing Mr Bair is currently identifying with a level of psychological distress which is consistent with his report of increased anxiety over the last few weeks as a result of his imminent court hearing'.[4]

[4]        Exhibit C, page 13.

She agrees, with Mr Candlish’s report that you have longstanding psychological issues which predisposed you to drug and alcohol misuse which was a major contributing factor to your offending.

46.She gives the opinion:

'Mr Bair’s psychological issues will place him under added stress during any period of incarceration and he currently reports a deterioration in his psychological state due to his upcoming court hearing, Mr Bair’s psychological issues will impact on his ability to complete a term of incarceration in comparison to persons who do not suffer from these issues'.[5]

[5]        Exhibit C, page 15

47.I turn now to the submissions of the parties, and I begin with the matters raised in mitigation by your counsel Mr Tom.

48.On your behalf Mr Tom submitted the following.

49.First, he relied on your plea of guilty which he submitted was at the earliest opportunity and was of significant utilitarian value.  Your plea of guilty was entered on 25 August 2023 and predates the announcement in this court that the backlog of trials occasioned because of the COVID pandemic restrictions had been cleared and therefore you are entitled to a Worboyes[6] discount.  He submitted your plea of guilty in conjunction with the statements you made to both Mr Candlish and Ms Lofthouse are indicative of genuine remorse on your part.

[6]        Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)

50.Secondly, he submitted that the evidence demonstrates you suffered real social disadvantage and trauma during your childhood, enlivening Bugmy[7] principles.

[7]        Bugmy v R (2013) 302 ALR 192 (“Bugmy”)

51.Thirdly, he submitted on the basis of the opinions expressed in the reports of Mr Candlish and Ms Lofthouse on the effects of incarceration upon you that Verdins[8] limbs 5 and 6 were engaged in sentencing you.

[8]        R v Verdins (2007) 16 VR 269 (“Verdins”)

52.Fourthly, Mr Tom submitted you youth – you were only 18 when you committed these crimes, was an important sentencing consideration and as far as possible the sentence I impose should promote your rehabilitation.

53.Mr Tom submitted taking into account all the relevant considerations a Youth Justice Centre Order should be imposed.

54.On behalf of the Director, Ms McVean submitted that the objective seriousness of your offending was high.  She submitted that your offending lasted around one and a half hours and was accompanied by threats of violence.  She submitted that your offending occurred in a public place and your victim was humiliated and degraded by having to walk from one level of the car park to another and then to the nearby enclosed park, naked from the waist down as well as being blindfolded and was then forced to run through the streets half naked to get help.  Ms Forster was a vulnerable victim whose protestations you ignored.  You did not use a condom, exposing her to pregnancy and disease.

55.She accepted, that is, Ms McVean accepted, that your youth moderated your moral culpability to some extent.  She accepted based on Mr Candlish and
Ms Lofthouse’s reports that there was some applications of Verdins limb 5, but not limb 6.  She submitted the material did not substantiate there was a serious risk that imprisonment would have a significantly adverse effect on your mental health.

56.Ms McVean acknowledged that you were a young offender and the principles relevant to sentencing a young person were engaged in sentencing you but submitted that the authorities make plain that as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigation effects of an offender’s youth.[9]

[9]        Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43 at [35] and R v

Mills [1998] 4 VR 235, 241

57.Ms McVean submitted that a youth justice order with a maximum period of four years in respect of all offences was outside the appropriate range and that the only appropriate sentence was a sentence of imprisonment, comprising of a head sentence and a non-parole period.  Ms McVean pointed out that it was open to the Adult Parole Board to transfer you to a youth justice centre until you turn 21.

58.Both parties referred me to comparator cases.[10]

[10]        Prosecution: De Haas v R [2024] VSCA 141; DPP v Drake [2019] VSCA 293; DPP v Skerry [2020] VCC

1189; DPP v Balcioglu [2024] VCC 506. Defence: DPP v Croft (a pseudonym) [2023] VCC 1243; DPP

v Mullins (a pseudonym) [2020] VCC 1257; DPP v Amin [2019] VCC 1756; DPP v Hyde [2019] VCC

712

59.Turning to my own assessment of the objective gravity of your offending and your moral culpability.

60.This was a shocking episode involving very serious offending.  You set upon your victim who was a vulnerable and defenceless woman.  Ms Forster endured an ordeal which lasted some time during which she must have been terrified.  You made threats to kill her.  You blindfolded her and moved her to various locations when she was in a state of undress and you penetrated her on multiple occasions without a condom, exposing her to the risk of pregnancy and disease, until on the final charged incident of penile vaginal rape you ejaculated into her vagina.

61.Charges 4 and 5 are rolled up charges.  One of the benefits to you by virtue of your plea of guilty is that you are to be sentenced on these charges in accordance with a single maximum penalty, however in assessing the gravity of these charges and your moral culpability, I take into account that they both involve two instances of rape and the sentence I impose must be reflective of the full criminality of your offending.

62.I regard this as objectively very serious offending and your moral culpability as very high.

63.Turning to the applicable sentencing principles.

64.I accept given your background that Bugmy principles are engaged in a general sense to moderate your moral culpability however weighted against this is the very grave nature your offending, and the application of both general and specific deterrence and community protection.

65.Your moral culpability is not reduced by your drug or alcohol consumption, nor is it moderated because of your youth.  You were 18 at the time of your offending, and you clearly understood the wrongfulness of your conduct and this is not a crime that can in any way be explained or excused by immaturity.

66.That does not mean that your youth has no relevance in sentencing you.  Given your youth I must attempt to craft a sentence which fosters your rehabilitation.  I intend to do this by imposing a lengthy period of parole.  I accept the prosecution submission that a term in youth justice with a maximum period of only four years is entirely inadequate to give proper expression to all the various sentencing principles and to denounce your conduct on behalf of the community.

67.You pleaded guilty.  Your plea predated the announcement that the backlog of trials occasioned by the COVID-19 pandemic had been cleared in this court.  Given your plea predated this development I sentence you in accordance with the principles set out in the case of Worboyes. However, while I accept that you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic-related delay at the time the plea was entered.  In August 2023 the situation in this court was not what it was in 2020 when trials were suspended indefinitely at the height of COVID uncertainty.  Accordingly, you will get a Worboyes discount, but it will be reflective of the circumstances at the time of your plea and will not be of the magnitude that pleas were attracting at the height of the pandemic.

68.I accept that your plea of guilty in conjunction with your statements to
Mr Candlish and Ms Lofthouse are indicative of remorse on your part.  I remain guarded about your prospects of rehabilitation. While you recognize the wrongfulness of your conduct you do still hold problematic attitudes to women, and you remain vulnerable, in my view, to a relapse into drug and alcohol misuse in the future.

69.Totality is an important sentencing consideration given you face a number of very serious charges, all potentially attracting significant terms of imprisonment.  I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending.

70.All of your offending occurred on the one occasion but given each charge involves a discrete incident of serious criminality there will be appropriate cumulation.

71.I accept there is some application of Verdins limb 5 in sentencing you on the basis of the conclusions of Mr Candlish and Ms Lofthouse, but I accept the prosecution submission that the material does not go so far as to substantiate that incarceration will be a very serious risk of causing a significant deterioration to your mental health.  I therefore reject that Verdins limb 6 is engaged in sentencing you.

72.I have had regard to the comparator cases which were provided by the prosecution and the defence, although in terms of the comparator cases I found the cases provided by the defence all involved objectively much less serious offending and the cases provided by the prosecution were of greater assistance to me.

73.I take into account the maximum penalty for the offences; I also take into account the standard sentence for the offence of rape. 

74.The standard sentence applies to an offence in the mid-range of seriousness based only on its objective factors.  It is a legislative guidepost.  It is but one matter that I must take into consideration, and I do so.  I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully all the facts, matters and circumstances I have taken into consideration in sentencing you.

75.Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you relied, I intend to sentence you to a sentence that is less than the standard sentence on the relevant charges. 

76.You are a young offender and therefore the serious sexual offender provisions do not apply to you.

77.Considering all the matters that I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows. You can remain seated in the circumstances, Mr Bair.

78.You are convicted on all charges – summary and indictable.

79.On Charge 1 – you are sentenced to 12 months' imprisonment.

80.On Charge 2 – you are sentenced to five years' imprisonment.

81.On Charge 3 – you are sentenced to 20 months' imprisonment.

82.On Charge 4 – you are sentenced to six years and six months' imprisonment.

83.On Charge 5 – you are sentenced to seven years' imprisonment.

84.On Charge 6 – you are sentenced to five years' imprisonment.

85.On Charge 7 – you are sentenced to six years and nine months' imprisonment.

86.On the summary charge you are sentenced to three months' imprisonment.

87.Charge 5 is the base charge.

88.I direct that nine months of the sentences on Charges 2 and 6, one year of the sentence on Charge 4 and 15 months of the sentence on Charge 7 be served cumulatively upon Charge 5 and upon each other.

89.That makes a total effective sentence of 10 years and nine months.  I fix a
non-parole period of seven years and 9 months.

90.Pursuant to the Sex Offender Registration Act you become a registrable sex offender on Charges 5, 6 and 7, which are all class 3 offences and which are to be treated as a single class 1 offence with a reporting period of 15 years.

91.The court has a discretion to make the order in your case, given your youth. In exercising the discretion, the court must take into account and be satisfied beyond reasonable doubt, first that the offender poses a risk to the sexual safety of one or more person in the community and secondly, if so satisfied that the order should be made in all the relevant circumstances.

92.The prosecution submitted that such an order should be made.

93.The defence submitted that such an order should not be made taking into account Mr Candlish’s assessment of you as a moderate risk of re-offending, that you have no prior history of sexual offending, that the offending did not involve a child and that you have good prospects of rehabilitation and that the effect of registration will inhibit your rehabilitation and reintegration into the community and finally that the purpose of SORA is child protection.

94.I reject that submission and will make the order.  I am satisfied beyond reasonable doubt, given the very grave nature of your offending, that you are a risk to the sexual safety of women and girls in the community and that your registration under the Sex Offender Registration Act is required to address the risk you pose.

95.I declare that you have served 566 days, not including today and I direct that be entered into the court.  But for your plea of guilty, I would have sentenced you to a head sentence of 15 years, with a non-parole period of 11 years.

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