Director of Public Prosecutions v Bol
[2023] VCC 1975
•25 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-00764
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BUOM KUOTH BOL |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2022 & 16 October 2023 | |
DATE OF SENTENCE: | 25 October 2023 | |
CASE MAY BE CITED AS: | DPP v Bol | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1975 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Rape
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:R v Verdins [2007] VSCA 102,
R v Sheriff Unreported Supreme Court of Victoria
– Court of Appeal 19 March 1998Sentence:3 years' imprisonment, 1 year and 9 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP on 30 June 2022 | Ms J. Piggott Ms H. Baxter Ms H. Baxter with Mr D. Staveley | Office of Public Prosecutions |
| For the Accused on 30 June 2022 For the Accused on 16 & 25 October 2023 | Mr J. Desmond Mr E. Cinar | Emma Turnbull Lawyers Erol Cinar Lawyers |
HIS HONOUR:
1 Buom Kuoth Bol, you have pleaded guilty to a charge of rape, the offence occurring on 26 November 2017. The maximum penalty for that offence is imprisonment for 25 years. You have also admitted a prior criminal history, although the offending disclosed in that history is of no relevance to the sentencing exercise in this matter.
2 The prosecution tendered and relied upon a Summary of Prosecution Opening for plea dated 2 September 2022. That became Exhibit A at the plea hearing. I am not going to read it in detail, but I am going to summarise it.
3 The complainant in this matter was aged 19 at the time the offence occurred in the early hours of 26 November of 2017. You were aged 28. The two of you had met at a party which was attended by the complainant - your victim - and her cousin, who was aged about the same as your victim.
4 During the course of the party you discussed with your victim and her cousin going back to your home for some further drinks. Indeed, that is what occurred. You arrived at your home after midnight and you, your victim and her cousin had some drinks. You provided some cannabis for them to smoke and when they consumed the cannabis each of them became sick and disoriented.
5 Your victim needed to be carried to bed. She vomited when she got to bed and her cousin later went to the same bed and also vomited in that bed. Your victim passed out after she was taken to your bed. She remembers her cousin lying next to her in the bed also vomiting and she heard you say, 'Can you stop vomiting in my bed? If you need to vomit go to the bathroom'.
6 After that your victim blacked out and heard no more. It was not until about 8 or 8.30 am that she awoke, finding you lying behind her, with her skirt and underwear pulled down. She could feel your bare skin against her and she could feel your finger inserted into her vagina and you apparently trying to insert your penis into her vagina. She was initially disorientated but turned her head to you and said, 'What the fuck are you doing?' You withdrew your finger, jumped off the bed and pulled up your underwear and pants. She, your victim, became upset and accused you of raping her. You responded by saying, 'All I did was finger you'. And when pressed you said to your victim, 'I only tried to put it in'.
7 Eventually your victim and her cousin left your premises and attended the Monash Medical Centre, arriving at about 9.22 am. She was forensically examined and it was found that she had a blood alcohol reading of about .065 grams of alcohol per 100 millilitres and a reading for THC compound in her blood at that time of 69 mg per millilitre.
8 At about 5.45 pm on that same day, 26 November 2017, after your victim and her cousin had spoken to police, she made a recorded telephone call to you. During that call you admitted inserting your finger and trying to insert your penis into her vagina while she was asleep. The conversation is set out in more detail in the Prosecution Summary of Opening, but I think I have summarised it adequately.
9 On 8 March 2018 a search warrant was executed at your address and you were arrested. You participated in a recorded interview with police. You made partial admissions to police saying, 'Like, I did not put my penis in her or anything like that. She just seemed like she was asleep. I am just saying that I probably might have touched her vagina. I pulled her pants down because I was trying to touch her, like her sensual area. That's why I'm saying I might have touched her vagina'.
10
The Summary of Opening provides a chronology of events which shows that thereafter you were charged with this offence and other offences on
11 September 2018. There was a filing hearing on 5 October 2018. There was a committal proceeding on 16 and 17 April 2019, during which counsel on your behalf cross‑examined your victim. The matter then proceeded to the County Court where there was an initial directions hearing on 24 April 2019, with a trial listed to commence on 3 August 2020. There were a number of adjournments thereafter for funding issues, and the trial listing was vacated as a result of the COVID pandemic.
11 There then followed hearings which involved cross‑examination of witnesses and the trial was further listed for 26 October 2021. It was vacated and re-listed for 28 March 2022 and then re-listed again for 27 June 2022. The trial commenced on that day with the prerecording of the victim's evidence, in which she was cross‑examined. Following that, the matter resolved to a plea of guilty in relation to the charge that I am sentencing you for now.
12 It is true that there were other charges which were then not proceeded with, but you could have attempted to resolve the matter at a much earlier stage than you did. So to the extent that delay plays a part, it seems to me that the major contributing factor was your failure to come clean in terms of the charge to which you have pleaded guilty. Following your plea of guilty the matter was adjourned to 6 September 2022 and it was then, or shortly thereafter, that you indicated that you wished to change your plea and the matter was further adjourned until the matter proceeded before me as a plea of guilty on 16 October 2023.
13 The prosecution tendered and relied upon a victim impact statement and that was read to the court. It is necessary for present purposes for me only to read part of it, where your victim said:
'After what happened to me, I felt so strongly about [being] so violated that I had to take action and report what happened. I had to show the females in my community that you need to try and get justice for yourself and stand up for your right to feel safe and protected even if you don't have the support of your family.
‘In all of this I had to push myself and find my voice.
‘I'm not fully recovered yet and I will be re-engaging with further counselling to help me in my recovery.
‘You're not entitled to feel that you have the right to violate someone because they were vulnerable or not in their right state of mind. You don't know the pain and the shame it causes a person to know that someone felt so entitled they could do that to them. This is what I have to live with each and every day because of what you did to me.'
14 That statement was dated 5 September 2022, just short of five years after the offence was committed.
15 Turning to matters personal to you, your counsel provided me with sentencing submissions dated 16 October 2023, which became Exhibit 1 on the plea hearing. He also provided me with a copy of a report from Ian Mackinnon, consultant psychologist, dated 22 July 2023, and I note that that arose from a video linked interview with you on 10 May 2023 and 13 May 2023. That became Exhibit 2.
16
Exhibit 3 was a report from Dr Hillol Das, consultant psychiatrist, dated
11 October 2023. He indicates in the first line that he was requested to make a report by letter dated 22 June 2023. So it is clear that the report and the information upon which the opinions of Dr Das were based occurred after the consultation you had with Mr Mackinnon. Exhibit 4 was a report from Warren Simmons, psychologist, dated 17 August 2022.
17 Exhibit 5 was a letter from Dr Tokman who prepared a treatment plan for you upon his diagnosis of depressive mood with anxiety, to achieve what he described as your goals, to help improve your sense of wellbeing, and a referral was apparently prepared for a psychologist for counselling. I understand you did not pursue that counselling. Exhibit 6 was a series of letters of reference, including one from your partner which seems to be of recent origin and another shorter letter from your partner which is subsumed by the longer letter.
18 She describes in her letter many good qualities that you have. You entered a relationship with her in about 2019 and you have been a father figure for her son from a previous marriage who is now eight years of age, and to the daughter that you and she have had together who is now about seven months old. It is clear from the letter of your partner that you have formed a strong and, it seems, lasting relationship. You have shown yourself to be a caring person in the family setting and a responsible and devoted father.
19 Next there was a letter from Daniel Chukwan who speaks of your community involvement and commitment. Next a letter from Billy Kelleher dated 26 July 2021 on the letterhead of the Drum Theatre of Greater Dandenong, where he speaks of your contribution to the local community through your involvement in music, mentoring and volunteering, as well as providing paid assistance with performance and mentoring. Along with that I was provided with some pages showing what seemed to be references to recordings that you have made under the name BK Lawd Music.
20
Next I was provided with a letter from Corey Porter, team leader, dated
26 July 2021, indicating that he had known you personally and professionally since 2016 and that he had worked alongside you within the Melbourne music scene on multiple community projects. He speaks of your contribution towards the community. Next a letter dated 21 July 2023 from Robert Fisher who is associated with the Rotary Melbourne Afri-Aus Care Mentoring Program, and he speaks of your contribution to that, and indicates his knowledge of the fact that you were providing a courier service for the previous three years.
21 Next there is a letter dated 5 August 2021 from Ter Yual Yoa, who is the president of the Nuer community in Victoria. As I understand it you come from a Nuer background in South Sudan, as did your victim. Next is a letter dated 27 July 2021 from Tim McCartney, a photographer and film director. He indicates that he had been working with you for the past five years on various creative projects, including work relating to migrant and youth in the Dandenong region inspiring young artists to create music and stay away from the street culture. And he ends the letter by saying the African youth community of Melbourne needs someone like you to look up to and be inspired.
22 Next is a letter from your younger sister, Nimal. She speaks of you as being a person who is selfless, has respect for those around you, and that you constantly strive to do better. She says you are always respectful, generous and caring towards her and her siblings and all those around you. She goes on to say that the allegations against you seem to be completely out of character and do not align with your character, values and general respect for women.
23 Next there is a letter from Tasha Saqua. She says that you met through mutual friends in high school, through a common interest in music. She describes you as a person who is regarded as passionate, loving, warm and known for a kind heart and incredible skills in music and creativity. She goes on to say:
'Most of us know him for facilitating and participating in youth workshops predominantly within the Sudanese community in the Greater City of Dandenong [and] attempts to assist social and skill development, particularly for Sudanese refugees and troubled youth.'
24
Next is a letter from Selba-Gondoza Luka who is the CEO and founder of the Afri-Aus Care Inc organisation. And she describes the organisation since its inception as having worked to drive positive outcomes for African offenders, their families and the communities in which they reside. She says ACAAC, the organisation, has been assisted in achieving this through financial and
non-financial partnerships with community stakeholders and she goes on to list those.
25 She goes on later in her letter to describe you and your participation, giving something of a history of your arrival in Australia as a refugee migrant from South Sudan, having spent a significant period of your childhood in Egypt as a refugee and having experienced a number of traumas during that period. She also describes you arriving in Australia as a refugee, having been granted a humanitarian visa in December 1997, your schooling and graduation, and your attempt at completion of a Bachelor of Accounting and Banking and Finance at Victoria University, which you dropped out of in the second year.
26 She speaks of your passion for music and the arts, and the fact that you experienced a lot of racism at school which affected your self-esteem and 'made you develop a certain hostility in your character'. She reported you having suffered undiagnosed and untreated anxiety and self-doubt. She speaks of you going through a very dark time beginning in 2011 when your first cousin was brutally murdered in a gang-related crime and a year later one of your brothers began developing severe mental illness.
27 You became the sole carer for your younger brother. He was sent to Ethiopia by your parents in order to give him a better chance, but he was murdered whilst there. That event has affected not just you but other members of your family significantly. She also speaks positively of your relationship with your current partner and your participation in and performing at events associated with the Black Rhinos basketball club.
28
Exhibit 7 is a report of Lisa Jackson, psychologist, dated 2 August 2021.
Exhibit 8 is a letter of offer to you in a casual position at an organisation called ‘Speak My Language – Traveller’ at the Ethnic Communities Council of Victoria. That is dated 16 March 2021 and attached to that is a job requirement for that particular position and a position description.
29 Exhibit 9 is a discharge summary from Monash Health concerned with what I understand to be at least one miscarriage suffered by your partner in 2021.
30 In the course of his plea submissions, both oral and written, Mr Cinar sought to persuade me to accept the opinion of Mr Mackinnon over the opinions of Mr Simmons and Dr Das. That opinion was also inconsistent with the report of Lisa Jackson, psychologist, dated 2 August 2021. It is noteworthy that, of all of those professionals who have examined you in connection with preparation for this case, it is only Mr Mackinnon who has diagnosed you as suffering from post-traumatic stress disorder, both at the time he interviewed you in May of this year and at the time of the offending.
31 Dr Das in his report dated 11 October 2023 expresses the opinion that you do not suffer from a mental impairment and under the specific heading in his report, Response to Specific Questions, the question posed is:
'In your opinion did the accused suffer from any mental impairment at the time of his offending?'
32 His answer is:
'There is no evidence from the available history and mental state examination findings to indicate a presence of any psychiatric illness, either historical or a current one.'
33 The offender bears the onus of proving the existence of a mental impairment so as to affect sentencing discretion. In this case the court is urged to apply each of the six limbs of the Verdins principles arising from the case of R v Verdins[1]. I have read Mr Mackinnon's report carefully and, whilst he expresses the opinion that you were suffering from complex post‑traumatic stress disorder at the time of your offending, that you continue to suffer from that today, and that that disorder is likely to be made more severe by a term of imprisonment, there is little that I can find in his report in the way of reasoning for the opinions that he expresses.
[1] [2007] VSCA 102
34 He takes little trouble to set out the information upon which the opinion was based, coming solely from you apparently. There is no indication of any use of diagnostic tools or testing, or the results of any such testing, to support his conclusions. In dealing with your psychological state at the time of the assessment, Mr Mackinnon says at paragraph 57:
'In my opinion, at the time I assessed Mr Bol, he was suffering with Complex Post-Traumatic Stress Disorder (CPTSD) - manifested at a mild/residual level only - symptoms of which may include: anxiety, flashbacks, intrusive memories, nightmares, emotional lability, sensitivity to environmental cues and triggers, mistrust and paranoia.'
35 He goes on in the next paragraph to say:
'In my opinion, likely identifiable antecedents to Mr Bol's CPTSD include general traumas that occurred during his infancy and life as a refugee, recently further fuelled by the loss of two unborn children (during the past few years), and the death of his older brother (in 2020).'
36 He says about your psychological state at time of the offence at paragraph 63:
'In my opinion, at the time of the offences, Mr Bol was suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorders: complex post-traumatic stress disorder (CPTSD) and substance abuse disorder (SAD).'
37 This opinion was based on your reporting to him of your abuse of various drugs, including cannabis that you used on the night of the offending. At paragraph 66 he says as follows:
'In my opinion, whilst Mr Bol's CPTSD probably made some contribution to his offending, by degrading his ability to reason and make sound judgment, his SAD and his specific cultural and social expectations were the main contributors to his offending.'
38 Then at paragraph 67 he goes on to say as follows:
'According to Mr Bol, at the time of the offences he was heavily intoxicated, and in this context, his perception of events and the victim's intentions and implied consent (or non-consent), is likely to have been significantly distorted. Additionally, Mr Bol stated that, at the time, he was acting, in part, under inappropriate Sudanese cultural expectations and attitudes, which is also likely to have made a significant contribution to his offending.'
39 Then at paragraph 68 he goes on:
'In my opinion, based on the information provided to me by Mr Bol, at the time, he was also labouring with CPTSD that was, at that time, manifested at a moderate level of intensity, and subsumed significant depression and anxiety which, in part, underpinned his substance abuse, this having been a means of self-medicating his chronic distress, and also serving as a means of social bonding in the antisocial milieu he was, then, habitually mixing in.'
40
I pause to say that the reasoning behind that extravagant opinion, is scant. He then goes on in the next three paragraphs to say:
'Mr Bol reported to me: "Looking back, in our culture, a woman wouldn't go to your house, unless they wanted to have sex with you. It's not really even allowed. It did have some influence on my thinking, especially when dealing with females from our culture. They [the victim and her friend] approached me, said they wanted to come with me from the party. I now know that was wrong. It's not acceptable. I respect women. There are many females in my life I have close relationships with.”'
41 And then at paragraph 71 Mr Mackinnon goes on to quote you as saying:
“I started drinking early that day, at a different party, with some mates. Drinking spirits and smoking lots of joints, probably smoked a quarter [ounce of cannabis] over the day, probably seven or eight beers and a lot of shots, spirits. I was quite intoxicated at the time.”
42 It is noteworthy that, subsequent to your consultations with Mr Mackinnon, you consulted with Dr Das, psychiatrist. In the course of his report Dr Das says in the last paragraph on p4:
'According to Mr Bol, these two girls wanted to come to his place to "chill and spend the night". At home, they began music and drinking and dancing, and he thought they were giving "vibes", and one thing led to another as he recalled.'
43 And this is a quote that Dr Das attributes to you:
“In our culture girls do not come to you unless they want, one started kissing me, I felt they were in competition to get me, I was done with one, then all three of us in bed, the other was sort of angry that I was with the other first. I touched and she pushed and I did not go any further, we slept and, in the morning, woke up, the girl says what am I doing here, did you rape me, I said I did not, we started arguing and fighting, I am not a rapist, I kicked them out.”
44 He goes on to say at the top of p5:
'According to Mr Bol, next day both of the girls called him, and he recounted to them what had occurred the night before, saying ‘what exactly happened’, I said it all that I had sex with one and not with the other.'
45 A little further down, p5, Dr Das quotes you as saying that during the ensuing period of November to January:
'The same girl came and [you] “kicked her out of the house again”.'
46 Then Dr Das says 'according to him', meaning you, in March 2018 both girls came to your house party where you asked them to leave and they pleaded to join. A week later you told him the police arrested you and questioned you about the incident and then you were charged, the implication being that you sought, at least in your conversation with Dr Das, to link the fact that your victim attended your house in March 2018 with the fact that a week later you were arrested. I note that the matter was reported to police by your victim on the day the offence occurred.
47 What you said to Mr Simmonds when he interviewed you on 16 August 2022 is somewhat at variance with the sentiments you expressed to both Mr Mackinnon and Dr Das. Mr Simmonds did not diagnose PTSD or CPTSD and of the current offences at paragraph 24 of his report Mr Simmons says this:
'Mr Bol stated that he is pleading guilty to the current charges and is in agreement with the summary. He explains that he had met two young women after he had been at a party where he had consumed alcohol and smoked cannabis and they came back to his house. He added that his younger brother was also at the house, reporting that he again consumed alcohol and cannabis at the house. Mr Bol indicated that it was in this context that he ended up in the bedroom with the two women, one of whom he had a consenting sexual relationship with previously that night.'
48 I pause there to say that that fact was roundly denied by the victim's cousin to whom you were referring:
'Mr Bol indicated that he made overtures to the victim, although now understand that they were not reciprocated.
‘Mr Bol indicated that he is remorseful for his actions, saying that he should not have treated the woman that way and would not have wanted that sort of thing to happen to his sister. He admitted that his behaviour was inappropriate and may have had a significant negative impact on the victim. He did not attempt to justify his behaviour and did not allude to either alcohol or cannabis as affecting his behaviour, although it was clear from his description that it would have. He took responsibility for his actions and did not minimise what occurred.'
49 And then at paragraph 31 Mr Simmonds says this:
'With regard to the matters currently before the court, Mr Bol indicated that his behaviour was inappropriate and that he should not have acted as he did. He did not attempt to justify his behaviour and expressed remorse and had empathy for the victim in the matter.'
50 I note that the report was prepared shortly before and in preparation for the plea hearing listed in 2022 before you indicated your wish to change your plea of guilty to one of not guilty. Looking at those three reports together, it seems that whilst you were prepared in 2022 to indicate remorse, you stepped back from that somewhat in your consultations with Mr Mackinnon and Dr Das, and engaged in what could only really be described as victim blaming and exhibiting a sense of entitlement that does not sit well with your claim that you were remorseful for your conduct.
51 And I note that your consultation with Dr Das, in which you apparently told him the things that I have quoted from his report, must have occurred some time after 22 June 2023, that is, not long before the matter came back before the court for this plea hearing.
52 So going back to your counsel's submissions, and dealing with the matters raised under the heading Mental Impairment, I am not persuaded that you had complex post-traumatic stress disorder at the time of the offending or that you have complex post-traumatic stress disorder now. That conclusion seems to be consistent with the reports of each of the health professionals to which I have referred other than Mr Mackinnon. To the extent that you were suffering from some mental impairment, including complex post-traumatic stress disorder, at the time of the offending, I do not find that there is any link proved between that mental disorder and your offending conduct.
53 It is likely that you were affected by both alcohol and drugs, perhaps of various kinds, certainly including cannabis, but that does not provide any mitigation for your offending. It is true that there have been various other traumas, apart from the traumas you experienced during your early life in South Sudan and in Egypt, that have or had the capacity to affect your current mental state.
54 I accept that at times, and perhaps for a significant period of time in the last 10 years, you have been suffering from depression and anxiety, and I accept that there was a period during which you were engaging in the consumption of various illicit substances such as would found a conclusion that you had a substance abuse disorder. However, I do not find that such a disorder mitigates your offending. It may explain to some extent your conduct, but does not mitigate it.
55 There has been a significant delay since your offending. That is substantially attributable to you and your failure to accept the consequences of your actions, even though you admitted the offence to which you pleaded guilty on the very day in the conversation you had with your victim. You also hinted at it during your subsequent interview with police. You failed to come clean with the police and you have been the author of a substantial portion of that delay.
56 However, there is another aspect to the delay which is also important. It has given you the opportunity of turning over a new leaf and devoting your life away from the partying and consumption of illicit substances and alcohol that beset your life for the period leading up to the offending. It seems clear from the references which I have endeavoured to summarise in the course of these reasons, that you have devoted yourself to causes designed to further the interests of the community in which you live, particularly the South Sudanese community, but youth in general and the wellbeing of the society in which you live. That is very much to your credit.
57 You have also formed a relationship with someone who appears to be a good partner to you and a person who will give you strength and support during the rest of your life. You have family responsibilities which you have lived up to to date and I have no doubt will continue to live up to when you are free to do so.
58 I do not underestimate the impact of the childhood that you have been forced to deal with. You were exposed to a good deal of trauma that arose as a result of your birth in South Sudan and your stay as a refugee in deprived circumstances in Egypt. Those experiences are set out in detail in the various reports and I do not need to dwell upon them, save to say that it would not have been easy for you to come to this country and cope with the very different cultures that you experienced, to deal with the bullying and no doubt racial abuse that you would have been subjected to during your schooling and to emerge from that without some impact. It may well be that that contributed significantly to your substance abuse.
59 But the references do show that in the period since these matters were reported to police you have been trouble-free as far as the law is concerned and have endeavoured to demonstrate, first, rehabilitation and, secondly, that it is unlikely, in my opinion, that you will offend again. The only rider I put upon that is that your comments to both Mr Mackinnon and Dr Das about how it came about that the offending conduct occurred, leaves me to doubt the genuineness of your remorse or your insight into the wrongfulness of your behaviour.
60 However, you have pleaded guilty and you have done so in the knowledge that there is a real risk, if not an inevitability, that you will be sentenced to a term of imprisonment. You ought to be commended for that. I am not persuaded that any of the Verdins principles apply to reduce your moral culpability. Nor, in my opinion, does the evidence provide a basis for the application of Verdins limbs 5 and 6. That is not to say that your past, and the anxiety and depression which would be understandable facing a term of imprisonment, is not relevant to the exercise of my sentencing discretion. Those matters are factored into the decision that I have to make.
61
Delay is also a matter that is taken into account in that these matters have been hanging over your head now for a very considerable period of time. Your life has changed dramatically in the intervening period. It has also had added the stress of the likelihood of you having to undergo a term of imprisonment at the end of it.
62 Your counsel helpfully provided me with references to a number of decisions of the Court of Appeal in Victoria concerning offences of a broadly similar nature. It is to be noted that no two cases are the same and, whilst each of the references is helpful, none of those cases provides anything close to an exact comparator for the purposes of sentencing. Your counsel points out that in terms of analysing the nature of your offending, there was a single act of penetration. Even though, as you admitted in your conversation with your victim on the afternoon of 26 November 2017, you were intending to insert your penis, there was a single act of penetration by your finger only.
63 The penetration was, as he puts it, transient or of short duration. There was no gratuitous or additional violence. There was no risk of pregnancy or sexually transmitted disease and you acted alone and without a weapon. All of those matters are relevant to assessing moral culpability in the seriousness of the offending.
64 The prosecution provided me with an amended outline of Crown submissions dated 15 October 2023 and referred me to the case of R v Sheriff[2], in which the court held that it should not be thought that non-violent digital rape, simply because it is not penile rape and is not accompanied by violence or the threat of violence, should necessarily be regarded as an offence less serious than penile rape or that it might be less humiliating or traumatic than a digital rape accompanied by violence.
[2] Unreported Supreme Court of Victoria – Court of Appeal 19 March 1998
65 The outline goes on to quote Tadgell, JA from his judgment in that case where he said of digital rape unaccompanied by violence:
'A very clear message ought to be sent to the community that a digital rape of this kind is intolerable in a civil society.'
66
The submission goes on to say:
'The offence of rape is an inherently serious offence involving total disrespect towards another person with the perpetrator exhibiting a sense of entitlement. The offence has an impact on the general community and the community expects condign punishment.'
67 Counsel went on to draw my attention to factors that go to an assessment of gravity of the offending in this case as follows. It was submitted that you and the victim were relative strangers, having only met the previous evening. It was submitted that the victim was significantly intoxicated, and affected by drugs. I add, you knew that to be the case. The victim was vulnerable and defenceless. I add, one might say also helpless. She was in a stranger's home and had previously been falling in and out of consciousness and you knew that she was asleep.
68 It was submitted that you inserted your finger into her vagina but plainly your intention, and I add your express intention, was to insert your penis and that you attempted to do so. I stress that you are not to be sentenced for an attempted penile rape, but those facts, it was agreed, would form part of the prosecution opening and have been accepted by you as an indication of your intention at the time of your digital rape of your victim.
69 Counsel went on to modify those points by saying there was a single act of penetration, the offending took only a short period of time, although it is noted that the victim was asleep and was woken to you penetrating her. It was accepted by the Crown that there was no gratuitous or additional violence and that, with respect to the actual penetration which occurred, there was no risk of pregnancy or sexually transmitted disease, that you acted alone and did not use a weapon. Nevertheless, it was submitted by the prosecution that your moral culpability is high. I accept that submission.
70 Counsel for the prosecution stressed that your plea of guilty was entered at a very late stage of the proceedings and that the matter only resolved after your victim had given evidence and been cross‑examined, both at the committal proceeding on 16 April 2019 and at the prerecording of her evidence on 27 June 2022. Counsel noted that after the matter had apparently been resolved you sought to change your plea, although you ultimately abandoned that application.
71 It is accepted that the matter had resolved to significantly fewer charges than originally alleged against you, but, notwithstanding, this is not a case where any offers to resolve had previously been made by you prior to the offer which led to the resolution of the matter in 2022. There is still utilitarian value in the plea of guilty, however, there is little evidence of remorse according to the prosecution's submission. It is accepted by the prosecution that your criminal history is not relevant and that you have good prospects of rehabilitation.
72 There is a need for the court to punish you adequately for your offending, to denounce your offending and by way of general deterrence to send a message to others who might be inclined to behave in a similar way that there is a consequence for such conduct that involves a custodial sentence.
73 I note that the prosecution has indicated in their submissions that rape is a Category 1 offence and that I must impose a sentence of imprisonment which does not involve a community correction order. The prosecution's submission ultimately is that I should impose a sentence of imprisonment with a non‑parole period.
74 The prosecution also drew my attention to the provisions of the Sex Offenders Registration Act and to the fact that because the offence was a Class 3 offence as defined by that Act, registration under the Sex Offenders Registration Act is discretionary. The Crown does not seek your registration.
75 I have concluded that your rehabilitation since this offending conduct, and the many references that have been provided which support the conclusion that it is unlikely that you will offend again, and the current support that you have, the commitment to your partner, and the work that you were undoubtedly doing for the general public, in particular those associated with the South Sudanese community, is such that I should not order that you be registered under the Sex Offenders Registration Act.
76 It is necessary for me to balance the need to give proper weight to the sentencing principles to which I have referred, as well as any need to deter you, and I think that individual deterrence is not a significant factor. I need to balance those against the need to promote your rehabilitation which, as I have indicated, has been adequately demonstrated by your efforts to support the community and your good character in the period since your offending in this case. Doing the best I can to marry all of those principles, I am ready to impose sentence upon you.
77 Buom Kuoth Bol, for the offence of rape you are convicted and sentenced to imprisonment for three years. I fix a non‑parole period of one year and nine months before you are eligible for parole.
78 I declare pre‑sentence detention of nine days as time to be reckoned as served on the sentence that I have imposed.
79 But for your plea of guilty I would have sentenced you to imprisonment for a period of four years and two months, with a non‑parole period of two years and three months.
80 Are there any other orders I need make, counsel?
81 MR STAVELEY: Nothing further, Your Honour.
82 HIS HONOUR: I thank counsel for their help.
83 MR STAVELEY: Thank you, Your Honour.
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