Director of Public Prosecutions v DNM
[2013] VCC 2146
•10 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DNM |
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JUDGE: | HER HONOUR CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2013 | |
DATE OF SENTENCE: | 10 December 2013 | |
CASE MAY BE CITED AS: | DPP v DNM | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2146 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Jury trial - Rape – False imprisonment – Threat to kill – Uncharged conduct – Aggravating features of offending – Specific deterrence and criminal record - Consideration of various medical conditions - Intellectual disability of accused – Assessment of degree of this disability unclear – Question of ability to understand wrongfulness of conduct – Issue of degree of moderation of sentencing principles in light of Verdins
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence:Total Effective Sentence of 12 years and 3 months’ imprisonment – 8 years’ imprisonment before being eligible for parole – 877 days declared as having already been served as part of the sentence imposed – Ancillary order Forensic Sample
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. K. Churchill | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr. J. Kelly | Robert Stary Lawyers |
The victims’ names as well as that of the accused in this matter have been anonymised by the use of initials. This is has been done to maintain the anonymity of the victims.
HER HONOUR:
DNM, following a trial, you were found guilty of 13 charges of rape, two charges of false imprisonment, and three charges of threat to kill. The maximum penalty for rape is 25 years’ imprisonment, whilst the maximum penalty for false imprisonment and for threat to kill is 10 years’ imprisonment. The maximum penalties show how serious these types of offences are regarded by our Parliament.
Four of the rape charges and the two false imprisonment charges relate to the complainant “DSB” and the remaining offences relate to the complainant “KE”.
On the plea hearing a summary of prosecution opening was tendered. However, upon closer inspection this document did not refer to the evidence at trial but, rather, was a document prepared before any evidence was given. In those circumstances, I had my associate email the prosecution, copying in the defence, requesting that an outline on the basis of the evidence be prepared. This has now been attended to and Defence do not take issue with this document being an appropriate basis for sentencing. I have had regard to this document and also to the evidence itself at trial in sentencing you.
I sentence you on the following basis, in accordance with the jury’s verdicts, and on the basis of the evidence at trial.
At the time that you committed all of the offences, you were 24 years old and lived with your father. The first complainant, DSB, was 17 at the time you offended against her and KE was 23 years old at the time you offended against her. Each of the complainants lived at home with their families and did not know each other.
Charges 1–6 re DSB
In relation to the first complainant, DSB, on Sunday 19 September 2010 in the early evening, you approached the first complainant on the steps of Flinders Street Station. She was waiting to meet her sister having attended a puppy farm rally earlier that day. You started a conversation with her and told her that you were in possession of some drugs. You asked her if she could do sexual favours for you in the toilets in exchange for drugs. She refused to do this. You told her that you had an expensive house in Geelong, that you owned an illegal snake, and that you were able to import illegal animals into Australia. You asked her name and where she lived. She gave a false name and residential suburb as this was her practice when speaking to strangers. You also said to her that you went to a strip club in a particular suburb and to mention your name when she went there. She told you that she was 17 years old. You gave her a false name, telling her that your name was “Ali”. She said that she was pretty sure she gave you her phone number and about 15 to 20 minutes after her conversation with you had ended, she received a call from you. She told you that she had to go and she had to meet her sister soon.
In the next few days she received a couple of calls from you, speaking to you between 5 and 10 times. In one of those calls you said that you wanted to meet with her and she said she did not want to. You told her that she had to meet with you, and referred to Mafia connections that you had. DSB said that you had referred to these connections at the Flinders Street steps and referred to them again when you asked to meet her at Glenroy. She said that when you mentioned these connections, she felt threatened and in these circumstances she agreed to meet with you. In her evidence-in-chief, she went on to explain that you had threatened the safety of her family and she was concerned that you would follow through with your threats if she did not meet with you.
The first complainant said that you met with her at the Glenroy Station, and you called her whilst she was waiting and told her to go to the speaker part at the station and click the button saying which station that she had arrived at. Once she had done this, you said you would be there in a few minutes. Before this, she said you had called her while she was on the train to ensure that she was on her way.
The first complainant waited outside the train station and you arrived in a taxi. She got in and you sat next to her in the back seat. You told her to pretend it was your birthday and that you were her boyfriend. You took her to the Formula 1 Hotel in Fawkner.
When you went into the hotel room, you had an initial conversation then asked her to take off her clothes. She agreed to this as you had previously told her that you had people down the hallway and if she were to do anything, they would come out. She later recalled in her evidence that before she got undressed she told you that she did not wish to and it was at that stage that you said if she did not get undressed you would get people from down the hallway to come in.
You then undressed and you told her that you had brought a gun in and left it on the cleaning lady’s trolley before you entered the room. She believed you when you told her about the gun. After you undressed, you got on top of her and had penile/vaginal sex with her against her will. This gives rise to Charge 1, rape.
After this, you told her to take a shower as it was part of your culture for a person to shower after a man ejaculated in them you said. She asked if she could get dressed after having the shower but you said no. She said at that at this stage you got handcuffs out and shackled her to the bed. You then slept whilst she was handcuffed. She described the handcuffs, and a set of these which were similar in appearance were subsequently found at your home. This conduct gives rise to Charge 2, false imprisonment.
After you awoke, she said she was pretty sure that you said that you were here illegally and you knew where Osama bin Laden was living. She said that these matters convinced her more of your connections. She said that she felt as though she had no control of herself in the situation. You then had penile/vaginal sex with her again which gives rise to Charge 3, a further charge of rape. The first complainant said that at no time did she wish to have sex with you but felt that she had to for fear that you would follow through on threats that you made to her. After you had raped her the second time, you made her shower again then told her about people who were watching her as she was waiting for you at the train station. She said that you had told that you had some people checking on her to see if she was alone or if she had police with her.
Thereafter, you had intercourse with her on a further three or four occasions – these occasions were not the subject of any charge and were led as uncharged instances which were led as context evidence. I do not sentence you in relation to these further occasions.
She was at the hotel for six or seven hours and was unable to leave during that time as she was too afraid to. She said to you that she needed to go home as her parents were calling. She was contacted by you several days later and you told her again to meet you at Glenroy Station. She met you again on 28 September 2010 and did so because you reminded her of the threats that you had previously made. She said that you had told her that you would find her family and kill them and that you had killed a police officer. She said that she believed these threats.
DSB said that she left the hotel on this first occasion after you gave her a card to pay for a taxi. However, this was of no value and she threw it out when she was taken downstairs by you to catch the taxi. The card was a Woolworths Everyday card which she said she threw out. She said she had to lie to her mother when she got home, saying she thought she had enough money for a taxi and her mother ended up paying for this.
On the second occasion you again had her go to the station intercom button telling you which station she had arrived at. You arrived at the station about 10 minutes after this and told her to get in. She observed that you seemed to know the taxi driver. You returned to the Formula 1 Hotel and after initial conversation in a hotel room, you told her to get undressed once more. You also got undressed and shortly after this you put on an adult film and told her to lie on the bed and she complied. You again had penile/vaginal intercourse with her. During this, she said that her hips were starting to hurt and she told you to get off, which you did. She complied with your demand on this occasion out of fear that you would carry through the threats which you had previously made. This gives rise to Charge 4, a further charge of rape.
After this, you again handcuffed her to the bed and fell asleep and she lay there on the bed for one or two hours she said. When you woke up you noticed that she had been able to get her hand out of the handcuffs so you put the handcuff back on again and told her that if she tried to get out of the handcuffs again you would look in her purse and find out her real name. This gives rise to Charge 6, false imprisonment.
The first complainant said that after this, she was pretty sure that you made her have a shower and you watched while she did this. She then sat on the bed and the next thing she remembered was that you had penile-vaginal intercourse with her again. This gives rise to Charge 5, being a further charge of rape. Again, she gave evidence that she had sex with you on this occasion because she felt forced to do so in circumstances where you had threatened her and her family.
The first complainant gave evidence that at some stage she asked you what would happen if she became pregnant, and you told her you would give her $10M to pay for the child. She asked, what would happen if she went to the police as they would then have your genes on file. You replied that if she went to the police you would get her family.
On this second occasion at the hotel, you kept telling the first complainant that you would drive her home but then told her to wait until you called. When you did not return, she made her way to the front counter and asked the receptionist if she had seen you. She was feeling frightened at this point. Again on this occasion, you gave her a Woolworths Everyday card which she left in her bag.
After she left the hotel, she approached two police officers and appeared to be frightened and upset to their observation. According to Police Officer Catherine Graham, the complainant explained to her that she could not be seen speaking to her as she may be heard, that there were people everywhere and were part of the Egyptian Mafia. Subsequently, she made a complaint of being raped.
Charges 7, 9-19 inclusive re KE
KE was born on 22 January 1988 and was 23 years old at the time of your offending against her.
You approached her at Parliament Railway Station on Sunday 19 June 2011 at about 3.30 or 4.30 in the afternoon. You made grandiose representations to her as well, offering her a job at one of your strip clubs with you said you owned. When she dismissed this idea, you told her about other businesses in which you were involved, including importing and sporting companies. You told her that you owned a diamond company and needed someone to work for you as a secretary. The second complainant told you that this job appealed to her. You introduced yourself as “Fernando” and she did not know your real name, she said, until recently. You obtained her phone number whilst on the train with her. She asked you for your number first, but you told her you did not know it off by heart so she gave you hers. She wrote this down on a piece of paper and identified the note she had given you, which was an exhibit in the trial. You told her that you would call her that night and to make sure she had her phone with her. She left and went to her boyfriend’s home.
Later that night you called her at around dinner time and asked if she would sleep with you for $3M. She repeatedly refused but you kept talking about this. You told her you would take her to a hotel and you would act is if you were boyfriend and girlfriend. You said some sexually explicit things to the complainant of a most objectionable kind. She said that she was not a prostitute and that what you were suggesting went against everything that she was.
You told her that you were happy with her responses and that you were testing her to see if she was respectable enough to work for you. You told her to come for an interview and to bring her resume later that week. On the following Thursday, 23 June 2011, she met you on the steps at Flinders Street Station and brought her resume with her. Police found the cover letter for her resume in your house and this was tendered at trial. You walked to a café and then asked to see her resume, which she handed over. You gave the second complainant a pen to sign the document then laughed and told her she should not sign anything. The second complainant said that you looked through her resume and asked her if she knew a person from “Smart Group” which was referred to in her resume. You told her that this person had slept with you for money.
Subsequently, you asked the second complainant to meet you at Broadmeadows Shopping Centre. You told her that she had the job with the Diamond Company. When she met you at the Broadmeadows Shopping Centre she kept asking you when she could start and you told her not to ask questions – that you would tell her very soon. You sat down at a café and then told her that you were actually a big cocaine importer, making millions of dollars from cocaine which you brought into the country. You said you wished to be seen at Broadmeadows Shopping Centre with her so that you would have an alibi if anything was traced back to you. You then threatened to kill her family, friends and boyfriend if she told anyone about this. You said you would make them suffer and make her watch. This gives rise to Charge 7 – threat to kill. She was told by you that you had your boys watching her every move and that you had been tracking her on your phone so you would know if she called the police. You told her stories about how you had raped and killed other people.
The second complainant was terrified, believing what you had told her. She begged you not to hurt her family and said she would not go to the police if you agreed not to hurt them.
On 27 June 2011, you met the complainant at the Galactic Circus at Crown Casino. You told her you had a gun in your jacket and that you did not go anywhere without it. You again told her that your boys were watching her every move and not to say anything to anyone. On 1 July 2011, the second complainant met you again, believing she was to commence work with your company that day. You told the complainant that her friend, CK, whom you had met on 28 June 2011, was a rat, that is a police informant. Despite the complainant’s protests that her friend was not a police informer and knew nothing, you said that both she and CK needed to be punished. You told her that she had to go with you to a hotel and sleep with her so that CK would not be harmed. You also told her that your cousin was looking at making the second complainant’s little sister his sex slave. You said that you were going to hurt CK – this conduct did not suffice to satisfy the elements for threat to kill and therefore I directed the jury to acquit in relation to this charge which was based on that evidence. However, I am satisfied that you did make a threat to harm CK at this time. The complainant began to cry and you told her to shut up and to stop crying because some of your boys and your cousin’s boys were watching her, and if she did not act normally then they would shoot her. This gives rise to Charge 9, threat to kill.
You then made her take a photo with you on your phone, instructing her to look happy. The photo was tendered at trial. You then made the second complainant take some pills and told her that the boys were still watching her. You said that one of the pills contained a GPS and the only way to get it out was for you to ejaculate inside of her. The second complainant was terrified and was crying. You told her to shut up.
You then went to the Formula 1 Hotel, and once you were in the room you told the second complainant that you had to take some video of her performing sexual activities for your cousin to watch and approve – that way, your cousin would not hurt CK or make the complainant’s sister a sex slave. She then performed oral sex on you, given rise to Charge 10. This incident was recorded on your mobile phone, which is an aggravating feature of this offending. The recording was tendered and played at the trial.
You then got on top of the complainant and had penile/vaginal sexual intercourse, pulling her hair at some stages of this, and calling her “shamouta”, which the complainant understood to be a word for slut in another language. The complainant gave evidence that she felt suffocated and that she as being crushed as this incident continued. You ejaculated and rolled off her. She said she had bruises from this incident and that intercourse was painful. The second complainant complied with your demands in relation to each of these sexual penetrations so as to prevent you from harming her family and friends, believing that you would do so if she did not comply. This act of sexual penetration, to which I have just referred, gives rise to Charge 11, a charge of rape, which is aggravated by the fact that the incident was recorded on film and also by the fact that you had unprotected sexual intercourse with the complainant, exposing her to the risks of pregnancy and sexually transmitted diseases.
On 4 July 2011, KE received a text from you telling her that the video was no good and she needed to make a new one. She replied to the text asking who it was, and you responded “M. And don’t fucking tell F” – the complainant understood “M” to be a reference to your cousin and “F” to be a reference to you. She became distressed and called you – you told her she needed to make a new video. You said that until your cousin was happy with the video, she was still at risk.
It was in these circumstances that she returned to the Formula 1 Hotel with you, pleading with you that she did not want to do this and asked if there was any other way. You told her that she had to do this otherwise your cousin was going to come in and take over. The complainant believed that this meant your cousin was going to come and rape her instead. You told her that your cousin would rip her apart and that she would be subjected to violent rapes by your cousin holding a gun to her head and would shoot her if she did not comply. The complainant then obeyed your instruction to lie down on the bed face down. You got on top of her and inserted your penis into her vagina. As you were doing this, you pulled on her hair and said “up and down, you’re my slut, what are you?” and made her answer “your slut”. You asked her if you had left your Egyptian trademark in her and if she enjoyed it. You filmed her answering this question. She gave evidence that she was too scared to answer truthfully out of fear that your cousin would hurt her. This gives rise to Charge 12, another charge of rape. Again, the filming is an aggravating feature of this charge. You told the complainant to shower, then forced her to have sex a second time in the same position as detailed in respect of Charge 12. This gives rise to Charge 13, rape.
The complainant again showered and you made her Blu Tack her phone to the desk so that it faced the bed. You told her to look happy because your cousin was going to see the video, and if he was happy then no one would be harmed and her sister would not have to be a sex slave. You also said that her friend, KC would not be harmed. The second complainant Blu Tacked the phone and then lay down on the bed and you, again, had penile/vaginal intercourse with her, giving rise to Charge 14. You, again, called her your “shamouta” and a slut and whispered in her ear to answer your questions. Again, the filming of the incidents are an aggravating feature.
On 8 July 2011, the second complainant met you at Broadmeadows Shopping Centre where you again threatened her best friend, KC. You said that you were going to kill her or that your cousin was going to kill her. This was uncharged conduct in the trial. The second complainant told you that she did not want to be part of it anymore and to leave everyone alone – to stop following her and stalking her with your boys. You told her that your cousin would sign a contract and leave her alone and not harm her family if she had sex with you once again. You told her that your cousin was looking at her sister again, wanting to make her his sex slave and that she would have to have sex with you in order to have your cousin leave her sister alone. Again, believing your threats, the complainant attended the Formula 1 Hotel. You threatened her and told her she had no choice – to stop crying and do what you said.
On this occasion, you had sexual intercourse with the second complainant on two occasions. On the first occasion, she lay on her stomach, facing the end of the bed, and you got on top of her, pulling her hair back and “talking dirty to her”. You inserted your penis into her vagina whilst she was on her stomach. This gives rise to Charge 15.
On the second occasion, you filmed the sexual intercourse. The complainant was instructed to behave like she was enjoying it and as if she was your girlfriend. She was told to act happy and answer your questions. The complainant gave evidence that she did not enjoy the sexual intercourse and that she was being crushed. The complainant lay on the bed face down and you climbed on top of her, penetrating her vagina with your penis, from behind. This gives rise to Charge 16.
You told her that she was now free and she did not have to deal with you again. You said that your regular taxi driver was one of your boys and would try to run over her boyfriend if he ever saw him.
On 11 July 2011, you told the second complainant that your cousin had found out that her sister had been approached by the “K” group. You said that your cousin had signed a contract to protect her and her family. The second complainant said that you described her younger sister perfectly and so she believed you when you told her that her sister had become entrapped in a scheme by the “K” group, who had been tracking her. You told her that she could not speak to her little sister, as the group were listening through her phone, and if the complainant said anything they would shoot her sister.
On 12 July 2011, the second complainant met with you and you told her that your cousin was listening to their conversation through a necklace you were wearing. You told her that the “K” group were after her family and wanted to make her brother a heroin addict and hurt her family. The complainant then received text messages from a Telstra payphone saying “K u and your family” and another saying “K group all the way” – these made her feel very frightened. On this same day, you became infuriated with the complainant and said “fuck you and your family, I know you have been recording us”. You grabbed your necklace and purported to tell your cousin, Michael, that if she had been recording you, to kill her and her family. This gives rise to Charge 17, threat to kill.
That evening, you told KE that the “K” group wanted to drug her and to have sex with you. You told her that they would give you a necklace with a small camera in it, so they could see what was happening. On 13 July 2011, the second complainant met with you again and you gave instructions as to what she was required to do for the purposes of recording her actions in your necklace, which had a small camera in it. You told her that the camera would not turn on until 1pm – that she had to take a pill in front of the camera and have sex with you, otherwise her family would be at risk again from the “K” group.
You went to the hotel once again and hung the necklace on a bed, instructing her to take a tablet, which she did. You then got on top of the complainant and inserted your penis into her vagina – she said that this was painful and she was being squashed. This gives rise to Charge 18, rape.
She said that on that occasion you had sex with her twice. The second time, she had to perform oral sex, with you inserting your penis into her mouth. This gives rise to Charge 19, the charge of rape. She said that you rolled her over and inserted your penis into her vagina once again, that she was face down at this time. This was not the subject of any charge and alleged as uncharged conduct.
On 15 July 2011, you phoned the complainant and she told you to stop speaking to her. You became angry and told her that you were coming to her house in a suit, which the complainant understood was your code for coming to hurt and kill her family and herself. She begged you not to hurt her and her family. You called her a slut and a dog.
In relation to occasions on which the conduct in which you engaged was filmed, this aggravates those offences. On occasions where you had penile/vaginal sexual intercourse, you were not wearing a condom on any of those occasions and that aggravates the rape charges in relation to this second complainant.
In fact, in relation to each complainant, on the occasions that you had penile/vaginal sexual intercourse, this aggravates those occasions of rape because you exposed them to the risk of pregnancy and sexually transmitted diseases.
Mr DNM, this is the factual basis upon which I sentence you. In circumstances where it was said that your moral culpability is reduced because of impairment of mental function, I thought it important to set out in detail my factual finding in accordance with the jury’s verdicts and in relation to any uncharged conduct or features of aggravation. I indicate that I am satisfied of these matters beyond reasonable doubt in sentencing you. Having said this, any of the uncharged conduct to which I have referred is relied on by the prosecution for the purposes of context only and therefore I do not sentence you for anything other than the offences which you have been charged with and found guilty of. However, in determining your level of culpability for the offending, I have taken these circumstances into account as they are relevant to such considerations and also are necessary in order to place the charged matters in proper context.
Objectively, your offending is most serious and deserving of the imposition of just punishment and denunciation in all of the circumstances, including the circumstance of your intellectual impairment to which I shall refer in due course.
The impact to the victims has been significant, as you would expect. DSB was still a schoolgirl when you offended against her. She essentially describes feeling numb after you first offended against her but has since experienced feelings of panic, anger and upset. She has difficulties with trusting people and does not wish to attend train stations or go on the train line that she used to because of what you have done to her. She said she is now sapped of energy and feels she has nothing to look forward to. She has experienced trouble with sleeping for a long time, especially when she had to go to court, being reminded of what happened. She feels very anxious and sometimes still becomes depressed because of what you did to her. Annexed to this complainant’s victim impact statement was a report from her counsellor setting out the problems which she now faces and has faced. She has been diagnosed as suffering Post-Traumatic Stress Disorder since you offended against her. She continues to suffer from the syndrome and has symptoms of anxiety which still need to be addressed through counselling. Although she has improved over a number of sessions she has had so far, it would appear that there is still some way to go. However, with continued treatment, her counsellor was of the view that she would eventually recover.
I have also taken into account the extensive material provided on behalf of KE. Again, your offending has had a profound effect upon her and she continues to struggle and suffer, feeling depressed, anxious and stressed. She says that she was not only physically hurt but that she was somehow feeling guilty for all that you were forcing her to do which she complied with to keep her family safe. She also experienced anxiety at the prospect of contracting sexually transmitted diseases from you. She says that she feels cheated in life because of what happened to her. Her relationship with her boyfriend, family and friends has changed because of your offending. She continues to experience anxiety and stress which has a ripple effect upon her family. She says that most of her friendships have fallen apart and she cannot socialise because she dreads the experience of having to explain to others what has happened to her and how she feels as she does. She used to be an outgoing and sociable person but now feels vulnerable, suspicious and anxious. She has severe difficulty in sleeping and remains traumatised by what you have done to her. Many everyday things trigger flashbacks to the things that she experienced at your hands. Although professional help has helped her to some extent, she says that there is a long path ahead. She found the court proceedings to be most traumatic and caused her to have to relive the dreadful events all over again. The impact on her studies and therefore her career ambition has been significant and it appears that she has struggled with maintaining a goal which had been her passion. In short, the impact of the offending and the legal proceedings has undermined every aspect of her life including eating, sleeping, socialising, relationships, study and leisure activities. She has been unable to hold onto a job and has been too afraid to look for work for some time. She feels deeply depressed and profoundly sad and anxious over the emotional setbacks she has experienced since you offended against her. She is greatly distressed by the fact that she no longer recognises herself and feels that she is no longer recognisable to the people who love her. She goes on to detail the financial impacts which your offending has had upon her.
However, insofar as the financial impacts upon KE relate to charges which were discontinued, I do not take this aspect into account for the purposes of sentencing you. She says that she feels tortured by the fact that you have shown no remorse for your actions and maintain your innocence. She says her only hope and comfort is that through her experience that the justice system would be able to prevent you from offending again and to protect other girls from experiencing the pain that she has endured.
It is clear from KE’s most articulate victim impact statement, and the material provided in support of it from her counsellor and other members of her family and friends, that not only have your offences severely affected KE’s life but they have had a devastating impact upon those who love her. The second complainant’s counsellor indicated that KE is suffering from a range of effects and symptoms which are consistent with Post-Traumatic Stress Disorder. Although she has made significant progress in addressing the impact of your offending, which is a tribute to her, it does appear, as KE says in her victim impact statement, that she has a long way to go. These are the very real and devastating effects that your offending has had upon these victims, Mr DNM.
You have the following prior convictions:
On 6th July 2004, in this court, you were convicted of armed robbery and you received a 12 month CBO was imposed with various conditions including assessment for psychological or psychiatric conditions and treatment as directed.
On 26th April 2006, you were dealt with for two charges of theft and one charge of recklessly causing injury; these matters were originally listed in the Melbourne Magistrates' Court on 16th Jan 2001 but you failed to appear and a warrant was issued for your arrest which must have come to fruition in 2006. You received an adjourned undertaking for 12 months without conviction. These matters were subsequently dismissed as you complied with the undertaking to be of good behaviour.
On 16th October 2010 you were dealt with at the Broadmeadows Magistrates' Court for one charge of impersonating a police officer and two charges of obtaining property by deception. You received a 12 month CBO with conviction with various requirements including assessment and treatment for psychological and psychiatric conditions.
Of particular concern is the last prior conviction in respect of impersonating a police officer and of obtaining property by deception. The details of this offending indicate that you defrauded a person who was intellectually impaired by convincing her that you were a police officer in order to extract money from her.
In sentencing you, I have taken into account your background. You are now 27 years old and up until your incarceration, you lived with your father. You have a very close relationship with him. You were born in Cairo and your parents separated when you were only four years old.
You had enjoyed a decent quality of life there, living with your mother and stepfather. When you were 11 years old, you left Cairo and commenced living with your father who relocated to Melbourne. Your father had re-partnered and you had three stepsiblings. The upheaval caused to you by such a drastic move from your mother must have had a significant impact upon you, although you now enjoy a close relationship with your father. Your cognitive problems manifested shortly after arriving in Australia and a diagnosis of a mild disability was made, making you eligible for a disability pension in due course. This also meant that you attended a school for people with special needs until you were 18. You frequently truanted from school and had difficulty coping with the tasks that you were assigned there. You have never held a driver’s licence and need assistance with daily living, such as showering, and some supervision of you is needed. Your father initially worked as an accountant, then in a laundry at hotels. Subsequently, he assumed the role as carer for you. Your father is your only visitor whilst you have been in jail and he sees you every fortnight. You have no contact with your mother. You weigh between 140 and 150 kilograms and you have been binge eating whilst in jail as a consequence of your anxiety. You have been disciplined whilst in gaol for hoarding food. You also experience incontinence from time to time, requiring you to wear a sanitary pad to deal with this. You suffer asthma and have a congenital heart problem for which you are to see a specialist shortly. You also have other medical conditions which I have taken into account, including hypertension.
Whilst in prison you have been subjected to bullying and assaults, often triggered by your inability to engage appropriately with other prisoners. You have also experienced difficulty with security personnel.
You have done the courses that you have been able to do whilst in prison. Because of your disability, you have not much in the way of work over the years, but it is to be hoped that you will develop some skills in gaol which you can use when you are released in due course. When you are released I understand that you will live with your father once more. He has been most devoted to you as was clear from his attendance at Court on most days during the trial.
I have considered the reports of the various experts which deal with your intellectual capacity. I do not propose to recite chapter and verse of these reports. However, it is clear that you have an intellectual disability which was first diagnosed when you were 11 years old. The Crown concedes that you do suffer from an intellectual disability and also concedes that the principles in the R v Verdins (2007) 16 VR 269 all apply to your situation, save perhaps for principle two, in that there is no dispute that a term of imprisonment is appropriate in your case. The area of dispute is the degree to which the relevant sentencing principles ought to be moderated in your case. Ultimately, this is a matter for me. As to whether you have a mild or moderate intellectual disability, as assessed by the various experts, is not clear. It appears that there is some overlap between what is regarded to be mild and what is regarded to be a moderate disability in any event. However, there have been a number of formal assessments of you and it does appear that your IQ is low on any view of things. Mr Kelly’s principal submission was that I ought act on the basis of the report of Ms O’Meara, neuropsychologist, which takes in earlier assessments of you, and I ought put to one side Dr Popp’s assessment of you insofar as he took the view that you presented with a mild intellectual disability, diagnosing you as “probable malingering of neurocognitive dysfunction”. Ms O’Meara concluded that the results of current neuropsychological assessment indicated that you were “performing within the extremely low range across the majority of cognitive functions, consistent with estimates of pre-morbid level of general intellectual functioning” (page 16). She detailed the ways in which your performance within the extremely low range played out. She said that your intellectual disability would have the following impacts on your mental capacity or functioning:
that you would struggle to hold and work with more than two to three pieces of information in mind at one time;
that you would be slow to process and respond to information and to complete tasks;
that you would be slow to learn new information and remember less meaningful, visual information over time;
that you would have difficulty comprehending information provided in more than a basic level of English;
that you would be unable to read beyond a Year 1 level and struggle reading even short sentences comprising of single words;
that you would have substantial difficulty on tasks with a strong visual basis;
that you would have difficulty planning and organising yourself and your approaches to tasks;
that you would struggle to complete more than one task at a time and be slow and susceptible to making errors when doing so;
that you would have substantial difficulty reasoning with information that is not straightforward or concrete;
that you are unlikely to detect any errors you have made and to self-correct these.
When dealing with the question as to any contribution that your impairment of mental function had to the offences, Ms O’Meara was of the view that this was difficult to determine, especially in view of the fact that you emphatically maintained your innocence. She said that although you had cognitive deficits – (especially impairment in abstract reasoning, attention shifting, impulse control, planning and organisation and self-monitoring) this would have a severe negative impact on your ability to exercise appropriate judgment, to make rational choices, to think clearly and to inhibit inappropriate actions, that your responses during interview “suggest that these cognitive deficits are not of a sufficient severity to impair” your ability to understand the wrongful nature of the crimes. You were able to provide an adequate definition of rape and to discuss the false imprisonment and threats to kill allegations. Ms O’Meara said that although it was highly likely that your low level of functioning across all cognitive domains was relevant to the offending conduct, it was not possible to comment on how your cognitive deficits related to specific aspects of the crime because you emphatically denied having committed the offences. She said that, in general, your impairments meant that you were likely to be gullible and that you demonstrated severe difficulty maintaining your own set of rules when they conflicted with the assessor’s rules. She went to say that because of your low level of cognitive functioning, it is possible that you would have difficulty detecting subtle signs of others’ discomfort, such as more subtle signs of fear or refusal, though you had a good understanding of explicit signs and reactions.
As against these matters raised by Ms O'Meara, you have been found guilty of 13 charges of rape in circumstances where the jury must have accepted beyond reasonable doubt that you had threatened and intimidated each of the complainants into submitting to a number of acts of sexual penetration. The threats that you made against KE, in particular, were of a rather elaborate nature and you were able to retain a memory of the story that you were spinning in order to continue to offend against her. I note that Ms O’Meara received a summary of the statement of offences and prosecution opening, but she does not seem to have factored in your proven conduct and representations, nor does she factor in the your ability to address the questions asked of you by police in the records of interview. Further, the necessary state of mind in committing each of the rapes in circumstances where you had threatened the complainants into the sexual acts, suggests a sufficient degree of knowledge and deliberation to commit the offences. It is difficult to conceive that your state of mind at the time of the rapes could have been inadvertence - that is, that you gave no thought as to whether the complaint in question was not consenting or might not be consenting – rather, I sentence you on the basis that you sexually penetrated each of the complainants whilst being aware that they were not consenting on might not be consenting.
Your counsel submitted that your intellectual impairment reduced your moral culpability in that it had the effect of impairing your ability to exercise appropriate judgment and that it made you disinhibited. The Crown concede that your moral culpability would be reduced insofar as impairment of your ability to exercise appropriate judgment was concerned. I must say that I have had some difficulty with reconciling this factor and what you did. Of course, your actions were completely inappropriate, but, within this, you appear to have made calculated judgments in executing the offences. You singled out and manipulated the fears of two different victims in a most calculating fashion, albeit bizarre. However, your lack of empathy in behaving as you did, and apparent capacity to control these two young women, suggests an inability to make appropriate judgment in terms of the degree of wrongfulness and of appreciating the degree of wrongfulness of what you were doing. Certainly, you were disinhibited, which is more obviously related to your intellectual disability in my view. In the end, I make some allowance in your favour so as to reduce your moral culpability in committing these offences.
Further, because of your intellectual impairment, I make some reduction in the weight which I would otherwise give to specific deterrence. Specific deterrence is a real consideration in your case because of your criminal history – in particular, the offence where you impersonated a police officer, and it is also a feature because of your lack of insight and remorse, which go hand in hand with maintaining your innocence. In saying this, I make it clear that you are not to be punished for maintaining such a stance, but this is relevant to your prospects of rehabilitation and the weight that I need to place on specific deterrence in all of the circumstances.
I also factor in that you have spent a great deal of time in prison already and you have found this to be a most difficult experience in a number of ways. This is a place to which you do not want to return and I am satisfied that you are capable of remembering this in the future if tempted to commit further offences. If not for the Verdins’ considerations, I would have placed fairly significant weight on specific deterrence in all of the circumstances; however, I reduce the weight to some degree in view of your impairment of mental function. In light of all relevant matters, including your prior convictions, your lack of insight or remorse for these offences, your intellectual impairment, but also factoring in your experience of gaol and your father’s support, I rate your prospects of rehabilitation to be fair at best
General deterrence is a factor which would normally attract strong weight as other people in the community need to know that committing offences as you have done will not be tolerated, so that they are deterred from behaving as you have. I make some reduction in the weight that I would otherwise give to this factor because of your impairment of mental function. I also make appropriate allowance in respect of the imposition of a just punishment and denunciation for the same reason.
I make a not insignificant allowance in your favour because of the fact that time in custody has been and will be harder for you than for others. There are a combination of factors in your case, as follows:
(a) your impairment of mental function, which has led you to be victimised in the prison thus far and such victimisation looks likely to continue, notwithstanding your status as a protected prisoner;
(b) your various medical conditions which include morbid obesity, bladder incontinence and heart problems; and other conditions to which I have previously referred and which were the subject of submissions to me by your counsel at the plea hearing;
(c) separation from your father and your anxiety for his welfare in your absence;
(d) your isolation because of your protective status which is most likely to continue and which you have endured already for a significant period already.
In sentencing you, I must also be concerned for the protection of the community, and I have to attach a good deal of weight to this consideration. All of the rapes which you have committed are relevant offences for the purposes of serious sexual offender provisions. This means that after sentencing you on Charges 4 and 5, you fall to be sentenced as a serious sexual offender and as such there is a presumption of cumulation in relation to these offences. However, I will not impose a sentence which is disproportionate in order to achieve the sentencing purpose of protecting the community.
The Crown submitted that you ought to be sentenced to a term of between 14 and 16 years’ imprisonment with a non-parole period of between 11 and 13 years. Your counsel submitted that the Crown’s range was too high, and that in view of all mitigating matters personal to you, including your age and the difficulties that you have faced and will continue to fact in custody, and in light of the Verdin's considerations, you ought to be sentenced to a period at a level below the prosecution range.
I have considered the submissions and the material provided in relation to current sentencing practice, although as counsel submitted, there is not any case which really compares with your offending. In the end, I have come to the view that the Crown range is too high; in particular, the non-parole periods, in view of your intellectual disability, your medical ailments and the fact that gaol has been, and will continue to be, a more onerous experience for you than for others without your difficulties.
I am now going to proceed to sentence you, but can you remain seated just for the moment, Mr DNM.
Firstly, I make the ancillary orders which are not opposed by you. I convict you in relation to all of the offences.
I make an order for a forensic sample to be taken from you. This will involve a sample of your saliva being taken from your mouth with the use of a swab. The order is not opposed by you. I make the order because of the seriousness of the offences, because it is in the public interest to do so, and because of your prior convictions, and the order is not opposed.
Secondly, I make an order in the terms of the document provided to me by the Crown. This order is not opposed by you.
I make an order under the Sex Offenders Registration Act 2004, having been satisfied that it is necessary to do so in light of the nature of your offending and the fact that it involves two different victims. Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, within 7 days after your release from custody. Details in writing of these reporting conditions will be served shortly upon you now by my associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.
Can you now stand up please, Mr DNM.
You are convicted and sentenced to the following periods of imprisonment.
Charge 1, three and a half years.
Charge 2, eight months.
Charge 3, three and a half years.
Charge 4, three and a half years.
Charge 5, three and a half years.
Charge 6, eight months.
Charge 7, 10 months.
Charge 9, 10 months.
Charge 10, three and a half years.
Charge 11, four years and two months – this will be the base sentence.
Charge 12, three and a half years.
Charge 13, three and a half years.
Charge 14, four years.
Charge 15, three and a half years.
Charge 16, four years.
Charge 17, 10 months,
Charge 18, three and a half years.
Charge 19, three years.
After imposing sentence on Charge 3, you are to be sentenced as a serious sexual offender in relation to the further charges of rape which will be entered on the records. However, I also intend to cumulate in respect of Charge 1, as this is the first instance of rape concerning the first complainant, and I also intend to impose periods of cumulation in respect of offences which are not sexual offences where they are separate instances of offending with their own separate impact to the victims involved. On the other hand, I have not cumulated in relation to all of the sexual offences in the interest of principles of totality and I have borne in mind that some of the instances of rape occurred on the one occasion and I have not cumulated in respect of each and every instance of rape.
The sentence on Charge 11 will be the base sentence. I make orders for cumulation as follows.
Twelve months from Charges 1, 4 and 18 and 14 months from Charges 14 and 16 and three months from Charges 2, 6, 7, 9 and 17 and nine months from Charges 5 and 10 are to be served cumulatively with each other and with the base sentence, producing a total effective sentence of 12 years and three months’ imprisonment.
You are to serve eight years before becoming eligible for parole.
I declare that you have already served 877 days by way of pre-sentence detention.
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