Director of Public Prosecutions v Bodagh
[2024] VCC 762
•27 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR-23-01381
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARIO BODAGH |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2024 | |
DATE OF SENTENCE: | 27 May 2024 | |
CASE MAY BE CITED AS: | DPP v Bodagh | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 762 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sexual assault
Legislation Cited: Sentencing Act1991, Bail Act1977, Sex Offenders Registration Act 2004
Cases Cited:Nil
Sentence: Convicted and fined the amount of $2,500. Placed on the Sex Offenders Register for a period of eight years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
| For the Offender | Mr P. Skehan | Emma Turnbull Lawyers |
HER HONOUR:
1.Mario Bodagh, you have pleaded guilty on indictment to a single charge of sexual assault.
2.You have also entered a guilty plea to a related summary offence of unlicensed driving.
3.In sentencing you for these crimes, I am obliged to consider the maximum penalty for these offences. The maximum penalty for sexual assault is 10 years' imprisonment. The maximum penalty for unlicensed driving is six months' imprisonment.
4.The circumstances of your offending are set out in a document entitled ‘Amended Summary of Prosecution Opening For Plea’ dated 2 May 2024 and has just been read to the court. That document is an agreed document and represents your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence.
5.On 22 August 2022 you first messaged the victim, Anna Gibbs[1], on Facebook Messenger using the profile 'Aak Grivaroo'. You were aged 22 at the time and Ms Gibbs was aged 15 years.
[1] A pseudonym.
6.From 8 September 2022 conversations between you and Ms Gibbs started on Facebook Messenger. On 13 September 2022 Ms Gibbs provided you with her address after you suggested that you meet up. She agreed to go for a drive with you.
7.You collected Ms Gibbs from her home at about 8.00 pm on 13 September 2022 and drove her to a panoramic viewpoint on Old Coach Road in Berwick forming the basis for the summary charge of unlicensed driving.
8.Various events in advance of the offending, during which time you were in each other's company, are outlined in the crown opening.
9.The circumstances of the offending involve you driving the complainant to a construction site in Broadmeadows on the morning of 14 September 2022. I note that you are not charged with unlicensed driving on this occasion. You pulled the victim onto your lap whilst you were in the driver's seat. Ms Gibbs thought you wanted a cuddle. You squeezed her buttocks over her jeans and told her that you wanted to have sexual intercourse. The squeezing of the buttocks is said to form the basis for the charge of sexual assault.
10.You became angry when Ms Gibbs refused your request and she threatened to walk home.
11.Ms Gibbs got out of the car and contacted a friend. You told her to get back in the car. Ms Gibbs was upset as she wanted to go home.
12.Ultimately you took Ms Gibbs to a train station to make her own way home.
13.Ms Gibbs contacted relevant authorities and told her sister that she was sexually assaulted by a guy she met online.
Offence gravity and victim impact
14.The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime on them.
15.Ms Gibbs has provided a victim impact statement and I have had recourse to its content. It was read to the court so the effects of your crime upon her are now known to you.
16.She has experienced night terrors, feels unsafe and has become anxious. Ms Gibbs has had cameras put around her home to give security. She feels vulnerable and angry and has had to take time off work and from school. Mr Bodagh, your actions and decision-making do affect others as you can hear from Ms Gibbs's victim impact statement.
17.You have a history of driving offences, so the summary charge of unlicensed driving is of concern. You well knew you were not authorised to drive yet did so anyway.
18.Obviously, the charge of sexual assault is the focus in the sentencing task.
19.I accept the submission made on your behalf that the circumstances of the charge of sexual assault are not at the higher end given it appears spontaneous and involved touching over clothing. However, you took advantage of
Ms Gibbs's vulnerability to your affections. Your actions show contempt for
Ms Gibbs and a desire to get your own way for your own gratification. This is something which you will need to change in the future. Issues of deterrence, just punishment, denunciation and protection of the community remain important.
Plea of guilty
20.The Sentencing Act1991 obliges me to take into account the stage at which you entered your guilty pleas.
21.Yours was indicated on the eve of a trial but also involved a significant adjustment in your favour to the charges being pursued. In that sense it is a plea at an early opportunity.
22.Your pleas have saved the time and expense of a trial and the need for witnesses to attend and give evidence. This is of particular importance in the case of Ms Gibbs who no longer has to relive a traumatic event through the trial process.
23.Whilst remorse is harder to discern, you have taken responsibility for your offending.
24.These factors will be taken into account in your favour.
Personal circumstances
25.Your personal circumstances were helpfully outlined in written submissions and expert reports tendered authored by Dr Juliette Hopper and Dr Bronwyn Hall. I have had recourse to all documents filed on your behalf.
26.You are now 23 years of age and were born in Bagdad, Iraq.
27.Your parents had five children of which you are the youngest by some 10 years.
28.Your family was persecuted as you were part of a religious minority.
29.Your father was kidnapped by ISIS in 2009 and your mother escaped with the rest of the family to Jordan before immigrating to Australia when you were 11 years old.
30.The transition was difficult for you. Your mother was considerably impacted by what she had seen and experienced, and school life was challenging given language and cultural barriers.
31.You did manage to complete VCE at Mount Ridley Secondary College in 2017. This was the same year in which you gained Australian citizenship.
32.Since leaving school you have had employment as a security crowd controller, a cleaning and floor polishing supervisor and as a medical courier.
33.In 2019 you found out that the father who had disappeared in 2009 was alive but unwell. You learnt of his death in April of the same year and were deeply affected by this series of events. Your criminal history commenced later in 2019.
34.You had a period of heavy alcohol use between 18 and 19 years of age and regular methamphetamine use for the closing months of 2022 and for some of 2023. You also experienced a period of heavy gambling during this same period.
Prior criminal history
35.Your prior criminal history is part of your personal circumstances.
36.Your first appearance was at the Melbourne Magistrates’ Court on 26 September 2019 when you were placed on an adjourned undertaking for a period of 12 months for offences of attempt to obtain property by deception, impersonate a police officer and drive whilst disqualified.
37.On 11 February 2020, you received a further adjourned undertaking for a period of 12 months at the Melbourne Magistrates’ Court for charges of deal property suspected to be the proceeds of crime, theft and use hand-held mobile phone.
38.On 14 October 2020, you appeared at the Melbourne County Court for a charge of attempted armed robbery and were placed on a two-year Community Correction Order with treatment conditions.
39.On 1 July 2021, you appeared at Broadmeadows Magistrates’ Court for driving- related offences, offences against the Bail Act 1977, criminal damage and make false report to police. You were placed on an adjourned undertaking for a period of 12 months which required you to make a donation to Road Trauma Support Services.
40.You received an adjourned undertaking for six months on 1 December 2021 from the Broadmeadows Magistrates’ Court for charges of contravene conduct condition of bail and obtain property by deception.
41.On 12 September 2022, you were placed on a Community Correction Order of 12 months' duration for charges of theft, attempt to commit an indictable offence and commit an indictable offence whilst on bail.
42.Whilst you do not have a history for sexual offending, you do for driving-related crimes and your offending on 14 September 2022 was in contravention of a Community Correction Order on which you were placed on 14 October 2020 and the Correction Order you received two days prior to your offending. This is an aggravating feature to your offending and shows an inability to comply with court orders.
Prospects of rehabilitation
43.In terms of your prospects for rehabilitation, you are now aged 23 years.
44.You spent a lengthy amount of time in custody subsequent to this offending. Thirty-seven days are directly referable to this matter. Either way, you have now experienced adult custody which is hopefully able to act as both a sanction and a deterrent for you into the future.
45.You were released on bail on 29 November 2023.
46.You remain well supported by family and presently reside at home with your mother and older brother and older sister.
47.Your brother, Joner, has provided a character reference for you describing the difficulties the family had moving to Australia and the difficulties you faced without a father figure. He describes you as having a “good heart” and that you are working towards getting your life back on track. You occasionally do work for your brother's tow truck business.
48.You are currently studying a Bachelor of Construction Management having completed two years and commencing your third year. You are studying Tuesday, Wednesday and Thursdays of each week.
49.You receive JobSeeker and pay board to your mother.
50.A neuropsychological report authored by Dr Bronwyn Hall and dated 23 July 2023 was prepared in relation to matters at the Broadmeadows Magistrates’ Court. She did raise some concerns about your literacy skills despite having obtained a Year 12 education. You have difficulties with comprehension, expressive language, reasoning, judgment and flexibility of thinking. You have difficulty with reasoning through problems in a logical manner and engaging in consequential thinking. Dr Hall saw significant consequences for you in learning of the death of your father. She saw benefit for you in engaging with a clinical psychologist. I encourage you to consider this.
51.You have done some work in removing gambling and drug use from your life.
52.Dr Hall was of the opinion that you present with a moderate to high risk of re-offending in the longer term but this would be reduced with an established routine, prosocial relationships, employment and mental health support.
Sentencing
53.Charge 1 on the indictment is a Class 2 offence in accordance with the Sex Offenders Registration Act 2004. This means I am required to place you on the Sex Offenders Register for a period of eight years, and I do so. At the conclusion of these matters you will be provided with documents you will be required to sign and set out your obligations under this scheme and it may well be that Mr Skehan can be of assistance to you in completing the documentation.
54.Otherwise, the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
55.I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
56.I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality. I have also taken into consideration the time you did spend in adult custody as a result of this offending.
57.On the summary charge of unlicensed driving, you are convicted and fined the amount of $750.
58.For the charge of sexual assault, you are convicted and fined the amount of $2,500.
59.Section 6AAA of the Sentencing Act1991 requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to a Community Correction Order for a period of 12 months.
60.Are there any other matters that either of you wish to bring to my attention?
61.MR SKEHAN: It's a minor thing, Your Honour. Your Honour said he had a prior for armed robbery, it was attempted armed robbery.
62.HER HONOUR: Thank you for bringing that to my attention, I will correct that accordingly.
63.MR COOKSON: Nothing from my end.
64.HER HONOUR: Thank you very much and thank you for your assistance, Mr Cookson. (Indistinct) documents will need to be signed, Mr Skehan – sorry, only one document for the sexual offence.
65.MR SKEHAN: Yes.
66.HER HONOUR: I might stand down temporarily while the documentation is completed. Thank you.
(Short adjournment.)
67.MR SKEHAN: I beg your pardon, Your Honour, I told Mr Bodagh he could leave the dock but I was perhaps - - -
68.HER HONOUR: It's all right. Probably for me to do, Mr Skehan, but in any event he didn't receive a term of imprisonment, obviously. That document has now been signed. I genuinely hope that your client's reaching a stage where he can put criminal behaviour behind him and pursue his studies in a meaningful way that means he's not a risk to young women or anybody else. So thank you to each of you for your assistance, that does complete the matter and I'll stand down until 11, thank you.
69.MR COOKSON: As Your Honour pleases.
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