Director of Public Prosecutions v Bioh

[2017] VCC 1725

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00726

DIRECTOR OF PUBLIC PROSECUTIONS

v

KWAKU BIOH

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 October 2017
CASE MAY BE CITED AS:	DPP v Bioh
MEDIUM NEUTRAL CITATION:	[2017] VCC 1725

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov
For the Accused	Mr J.Taaffe

1HER HONOUR:  Kwaku Bioh, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  The maximum penalty for that offence is ten years' imprisonment.  The prosecution made application for the taking of a forensic sample from you.  The making of that order was not opposed. 

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening upon Plea, which was tendered as Exhibit A.  In brief, the circumstances are as follows.  You and the victim met in September 2016 through mutual friends on Facebook.  You communicated via the Facebook Messenger program.  During initials conversations, you both discussed your ages.  The victim said she was 14 years old, and you said you were 25 years old.

3The offending occurred in November 2016, shortly after the victim's 15th birthday.  The victim resided in a Department of Health and Human Services residential care unit in Glen Waverley.  You knew this, as the first time that you had met, you had picked the victim up from her residential care unit. 

4On Monday, 14 November 2016, you picked up the victim from the Ringwood train station.  She contacted you because she had had a fight with her boyfriend, and she was very upset.  The victim spent the night with you in your car.  You both consumed alcohol, methylamphetamine and cannabis in the car.  You provided the drugs and alcohol. 

5The following morning, on Tuesday, 15 November 2016, the victim woke feeling ill because of the drugs and alcohols she had consumed.  She had vomited over her clothes.  You drove to a motel in Reservoir and checked in.  The room had a double bed and a single bed.  Inside the room, you told the victim to take off her clothes and have a shower.  You told the victim you wanted to wash her clothes.  The victim told you she did not want to take her clothes off and shower.  She was lying on the single bed in the room at the time.

6You continually insisted that the victim shower, despite her protesting that she did not want to.  You began to yell at the victim because she was refusing to shower.  Eventually, and in tears, the victim agreed, put her clothes in the wash basket, and went to shower.  You completed three loads of washing at the hotel.  You gave the victim some of your clothing to wear after her shower. 

7The victim laid back on the single bed after the shower, as she was still feeling ill.  You gave the victim more drugs.  She initially refused, but you insisted and told her that it would make her feel better if she took them.  The victim felt drug-affected and continued to refuse, but you put the drugs up to her mouth, proffering them to her.  You also asked the victim for sex.  The victim refused.  You continued to ask for sex from the victim, and she continued to refuse.  The propositioning continued into the night. 

8On the morning of Wednesday, 16 November 2016, you extended the checkout time.  You picked the victim up from the single bed and placed her on the double bed.  You climbed on top of the victim as she was lying on her back and ground your groin into hers over your clothing.  You then placed a condom on your erect penis and inserted your penis into the victim's vagina.  You changed sexual positions and penetrated the victim's vagina by placing her on top of you and inserting your penis into her vagina from behind her. 

9Sexual intercourse lasted approximately ten minutes, until the victim said, "No more."  You did not ejaculate.  You then told the victim to have a shower, before packing up the room and leaving the motel.  You drove to Thomastown, from where the victim contacted her residential care unit and asked to be picked up.  The victim was picked up by her boyfriend and told him what had happened with you. 

10From 16 November to 24 November 2016, you made numerous attempts to contact the victim by text message on her mobile telephone and through the Facebook Messenger program.  Part of the exchange included you asking the victim whether you had done something bad to her.  She said that you had made her have sex when she did not want to, and that when she did not want to do something, you had yelled at her.  You apologised.  The victim otherwise ignored your attempts to contact her.  She did not respond to your messages and did not answer your calls.  

11Police arrested and interviewed you on 29 November 2016.  When interviewed, you told police you knew the victim as a friend, but did not know how old she was.  You indicated that you would plead guilty prior to your committal hearing on 11 April 2017.  It is acknowledged by the prosecution that this plea should be regarded as an early plea. 

12Sexual penetration of a child under 16 years is a class 1 offence pursuant to s.7 of the Sex Offenders Registration Act 2004. Registration for this offence is mandatory. You must therefore comply with reporting obligations under the Act for 15 years.

13The victim's father made a Victim Impact Statement, which was tendered as Exhibit B.  He says he is making this statement, rather than his daughter, as she is too traumatised.  He says she received some bruising to her legs, but the emotional impact on her has been "completely devastating."  He says that she has become "withdrawn, angry, and has lost all trust in men."  The victim's father says that before this, she was outgoing and trusting, and used to be a social person, but now, that she is just not the same as she was before this offending took place. 

14In sentencing you, I have taken into account your personal circumstances.  Your personal circumstances were outlined in oral and written submissions by defence counsel.  You are now 26 years old.  You were born in Ghana.  You came to Australia with your mother when you were three years old.  You have two siblings.  Your mother worked as an aged care nurse to support the family.  When she was working, you were cared for by your sister and other relatives. 

15From an early age, you exhibited rebellious behaviour.  You say you now regret your resentful attitude to your mother.  You had difficulties with literacy and numeracy at primary school.  When you were 12, you were diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin.  You were non-compliant with that medication.  It appears that you were disruptive and rebellious in secondary school.  When you were 15 years old, you started using alcohol and cannabis.  You were expelled from school in Year 10.  You started Year 11 at another school, but left that school.  You began, and did complete, a plumbing apprenticeship.  Your counsel says that you enjoy that work and hope to be able to return to it. 

16In 2011, you were introduced to methamphetamines.  You worked, until your drug use led to you becoming unreliable, and left work in March 2016.  Your drug use and your behaviour caused problems with family members.  In late October 2016, as a result of your behaviour, a family violence safety notice was issued and bail conditions were imposed which excluded you from the family home.  This offending occurred whilst you were sleeping in cars or with friends or in hotels and using drugs. 

17You have no prior criminal history.  In January 2017, you were sentenced in the Magistrates' Court in relation to offending which occurred between 31 October 2016 and 1 November 2016.  You were convicted and fined $2,000 on charges including breach of intervention orders, breaching bail, damage to property, and assaulting and resisting police. 

18You were released on bail in February 2017, and then had contact with the victim's boyfriend, and sent negative messages to the victim.  That matter was dealt with in the Magistrates' Court, where you ultimately pleaded guilty to two charges of harassing a witness, in respect to the complainant's boyfriend and the complainant, breaching bail, and a breach of intervention order.  You were sentenced to a term of imprisonment of 21 days, 13 days of which was reckoned as served.  That meant that eight days of the time that you have spent during your period of remand on these charges ought be taken into account as a matter of totality. 

19Your mother, sister and other family members remain supportive of you, and attended court to support you. 

20In defence submissions, your counsel said that your offending demonstrated a pattern of immature, impulsive and destructive behaviour.  Your counsel said that you have demonstrated little insight into the seriousness of your offending, and he acknowledged that that bears negatively on your prospects of rehabilitation. 

21In mitigation, your counsel relied on your plea of guilty.  Your counsel relied on the utilitarian benefit of that plea, and also submitted that it was a demonstration of your acceptance of responsibility and remorse.  He acknowledged that that degree of remorse needed to be balanced with your lack of insight and subsequent attempted contact with the complainant.    

22Your counsel also relied on your relative youth and that this was your first time in custody.  Your counsel said that you had positive prospects of rehabilitation because of your family support, employment history, and trade qualification, together with positive references.  He said that you have engaged in rehabilitation programs in custody and had been abstinent from drugs.  Your counsel submitted that you had reasonable prospects of rehabilitation if you could deal with your drug and alcohol issues.  Your counsel submitted that the appropriate sentence would be a sentence of imprisonment, to be followed by a community correction order, which could enable your drug and alcohol rehabilitation. 

23In prosecution submissions, the prosecutor stressed the importance of protecting children and of general deterrence and denunciation.  The prosecutor referred to the aggravated features of your offending and submitted that your offending was serious offending, towards the upper end of the range for this type of offending.  The prosecutor submitted that as a youthful offender, your rehabilitation should be given weight, but that so should deterrence, denunciation and punishment. 

24The prosecutor submitted that a combination sentence was open because of your age and because the behaviour was not predatory, was limited to one occasion and that you had no prior criminal history.  She also referred to this offending occurring during a period of problematic drug and alcohol use. 

25Kwaku Bioh, any sexual offending against a child is serious.  The law tries to protect children from exploitation by others and from their own unwise decisions.  The law says that children under 16 are not mature enough to consent to sexual intercourse.  You knew the victim was just 15.  You were 25.  That is a very significant age difference at that age.  You knew she lived in residential care.  You gave her drugs and alcohol.  You pressed her to take drugs, despite her resistance.  You took the opportunity to ask her for sex.  When she refused, you persisted over a long period of time, until she consented.  By the time she consented, she was a long way from home and reliant on you for transport.  She had been with you for about 36 hours.  She had been feeling ill and drug-affected.  You did stop when she said, "No more."  At this time, you were on bail.  I consider this offending to be around the midrange of this type of offending, because of the aggravating features, and despite the fact that it occurred on only one occasion. 

26You behaviour must be strongly denounced and justly punished.  You are a youthful offender but because of the seriousness of your offending and the need to protect children, general deterrence remains a very important sentencing consideration.  Others must understand that if they have sexual intercourse with children, who are too young to consent, that they risk the prospect of a significant jail term. 

27Your rehabilitation is a significant sentencing consideration because of your age.  I consider that you have reasonable prospects of rehabilitation if you are able to deal with your drug and alcohol issues.  If you are not able to do that, your prospects of rehabilitation are low, given your past history, lack of insight and impulses such as trying to contact the victim.

28In your favour, you have family support and community support.  That is evident from the many positive references which were tendered on your behalf.  You have trade qualifications and an offer of employment.  You have taken some steps in custody to address your issues.  Specific deterrence ought be given some weight in sentencing you, to encourage you to engage in rehabilitation and to deter you from reoffending. 

29I have taken into account that this is your first period of imprisonment.  You are entitled to a significant discount for your plea of guilty.  That plea of guilty has had the benefit of saving the trauma and expense of a criminal trial.  I accept that your plea of guilty is an acceptance of responsibility.  I consider that you regret your offending but have limited genuine remorse in the context of your early apologies then renewed attempts to contact the victim. 

30You have been assessed as suitable for a community correction order.  I have considered that option, but in the end have concluded that a period of imprisoned to be followed by a community correction order would not adequately reflect the seriousness of your offending and the need for denunciation, general deterrence and just punishment, even where those matters are moderated to a degree by the need to give weight to your youth and rehabilitation.  I consider that only a sentence of imprisonment involving a period of imprisonment greater than 12 months could adequately meet those sentencing objectives. 

31I have taken into account your youth and need to address your drug and alcohol issues with support in imposing a shorter non-parole period than I otherwise would have. 

32Could you please stand up, Mr Bioh.  On Charge 1, you are convicted and sentenced to a term of imprisonment of 30 months.  I fix 18 months as the period you are required to serve before being eligible for release on parole.  I declare that you have served 294 days of this sentence by way of presentence detention.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of 40 months, with a non-parole period of 30 months. 

33I have made the order for the taking of a forensic sample from you.  I make that order because of the seriousness of the offending, that the making of the order was not opposed and that it is in the public interest.  I am required to advise you that the authorities will come to take a sample from you.  They will take that sample by way of a buccal swab, that is, a sample of saliva from your mouth.  I am required to tell you that you must cooperate with the authorities when they do that.  If you do not cooperate, they are entitled to use reasonable force to take a blood sample.  I am sure that you will cooperate when they come to take that sample. 

34I have said that you are required to comply with the reporting and other requirements of the Sex Offender Registration Act for a period of 15 years.  In a moment, my associate will come with your counsel to provide to you documentation about those requirements.  You will be asked to sign a form.  The form does not say that you agree with those requirements.  What the form does say is that you acknowledge that you have received that documentation.  Could you please take your seat.  Thank you, Mr Bastiano.  Mr Taaffe, would you mind going with Mr Bastiano to get that signature, thank you.

35Thank you very much.  Is there anything that counsel needs to be repeated, or that I have not addressed that I need to deal with? 

36MR TAAFFE:  No, Your Honour. 

37MS KARAMICOV:  No, Your Honour. 

38HER HONOUR:  All right.  Thank you both very much for your assistance, and I'll just sign these.  Thank you.  Yes, thank you.  Mr Bioh can be taken down now.  Thank you very much.   

‑ ‑ ‑