Director of Public Prosecutions v Duach
[2022] VCC 2314
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00857
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUACH DUACH |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2022 | |
DATE OF SENTENCE: | 16 December 2022 | |
CASE MAY BE CITED AS: | DPP v Duach | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2314 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | Office of Public Prosecutions |
| For the Accused | Mr T. Antos | Stary Norton Halphen |
HIS HONOUR:
1 Duach Duach, after a short trial in the Latrobe Valley on 7 July 2022, you were found guilty of two charges of rape and one charge of common assault. The offences offence on 22 March 2020 at a party at a residential property at Warragul. The maximum penalty for the offence of rape is 25 years' imprisonment with a standard sentence of 10 years' imprisonment; and for common law assault, five years' imprisonment.
2 The circumstances of the offending emerged in the course of the trial. The complainant in the matter was a young woman who resided in the Warragul area.
3 A number of young people who were members of, or friends of people involved in, the local soccer club attended at a party at a residential property. The complainant attended at the party with a couple of her friends on the evening of 21 March. She brought with her a bottle of vodka and a mixer. There was live music being played in a shed at the back of the property and so the party was divided between the shed and the house.
4 You were invited to the party by way of text messages from one of the people at the party who was a very close friend of yours. You were living in Traralgon at the relevant time and arrived at the party at about 9 pm with a friend. You were observed to be drinking at the party.
5 The complainant knew a number of people at the party. She was described as being very alcohol-affected during the evening, such that she was vomiting and unable to walk on her own. Her friends took her to a quiet place space to rest. At around 10 pm, one of her friends arranged for her to change her clothes and placed her on a couch in the downstairs lounge. Around that time, one of her friends noted that she had passed out and she was left with a bucket in case she needed to vomit. Later, the complainant was described as being outside, only partially dressed and vomiting. She was then taken by some friends and helped and placed in a nightie. Later in the evening, several friends helped her to an upstairs bedroom in the house. At that point, she was described as mumbling and incoherent. She was placed on one of the mattresses in the bedroom. A doona was placed over her and a bucket was placed nearby. The complainant was unable to respond when spoken to. The door was closed and the light turned off.
6 In the early hours of the morning, one of the complainant's close friends became aware that someone else was in the room that the complainant had been left in and the door was locked, and she became concerned. She then arranged for the door to be forced because she believed that there may have been sexual activity and she was of the view that the complainant was in no state to consent.
7 When the room was entered, at that point the complainant was seen to be in bed along with you under a doona. You were ordered to get dressed and get out of the room. The complainant was then assisted to the bathroom.
8 You went downstairs along with a couple of your friends and went outside. An allegation was made against you at that point that someone had been sexually assaulted. You denied it and kept asking whether the complainant had said something to that effect. You had a reflector strip that you had picked up from the footpath and were swinging it around according to one witness. Both you and your friend looked very concerned. You were outside on the footpath with that friend that you had attended the party with when a taxi arrived. You and your friend then entered the taxi and left the area.
9 You took the taxi to the Warragul train station. You were spoken to by the police along with your friend at the Warragul station. Later, the police ascertained that you were travelling to Melbourne and you were arrested later that morning at the Southern Cross station.
10 The taxi that you had caught had been called to take the complainant to hospital. The complainant was taken to the local hospital and was the subject of a medical examination. Evidence was led at the trial that her blood-alcohol content around the time of the incident would have been in the range of 0.183 per cent to 0.31 per cent. This was considered by the forensic doctor as high and likely to significantly impair her physical and cognitive abilities and judgement.
11 Biological examination identified your semen in the vaginal and anal specimens taken from the complainant. The complainant's DNA was also located on your underpants and under your fingernails and on your penis.
12 A physical examination of the complainant found bruising on her lips, buttocks and legs and neck. She had redness and abrasions on the neck. Her voice was hoarse and she had difficulty swallowing, suggesting of compression. The physical observations of the complainant provided the basis for your conviction for common assault against her.
13 Due to her intoxication, the complainant was unable to recall events of the evening. The prosecution case against you was circumstantial based on the DNA evidence and finding you in bed with the complainant in the upstairs bedroom. You did not give evidence at the trial. In a record of interview, you claimed you went upstairs looking for a toilet. You maintained that you opened the door to the room but denied being in the room when the complainant was in there. You denied having sex with the complainant. When asked what was your response that people were angry with you outside the house and asking you to leave, you stated that they were being racist. You denied being angry outside.
14 You maintained your defence at the trial. Your counsel probed the conflicting accounts by the witnesses as to the movements of the complainant and others within the house and confusion as to events that night. Further, your counsel probed the medical evidence as to the state of intoxication of the complainant. Counsel also referred to the physical evidence of the examination of the complainant as being consistent with consensual sexual activity. Your counsel also disputed the prosecution relying on you leaving the scene as evidence of consciousness of guilt when you had been directed to leave by one of the occupants. The jury must be taken to have comprehensively rejected the implicit suggestion in your counsel's final address that the prosecution had not proved beyond reasonable doubt that the complainant was in no state to consent to any form of sexual interaction with you. The jury must be taken to have accepted the prosecution case that the injuries to the complainant were consistent with non-consensual sexual and physical assault.
Victim impact statement
15 The complainant in this matter read to the court a powerful victim impact statement. She explained that the crime had completely changed the way she viewed herself both physically and mentally. She said, 'My overall feelings of anxiety have been heightened that I was put on anxiety medication', which she ceased. She said she has been having regular therapy appointments and she noted that the crime occurred during the COVID lockdown so in the period after that time, she was limited in able to access friends to assist her to process the matter.
16 She said, 'Through the time that I was alone and processing what had happened to me, I became depressed and felt helpless. I did not want to get out of bed, eat, sleep or go to work each day. I began to shame myself for what had happened to my body. I hated myself due to how disgusting I felt and became suicidal'. She states that her psychologist says she is suffering from PTSD. She has a generalised distrust towards people and finds she can no longer tolerate being in a crowd. She gets overwhelmed in social situations. She fears intimacy with men.
17 She says, 'To this day, I still feel distressed and disgusted with my body and the thought of what was done to me often makes me want to withdraw from everything I enjoy'. She states that she has had to spend money of psychology and had to take time off work and the only way she gets any clarity is going to the gym. She concludes by saying that, 'I no longer feel safe. I miss feeling safe and I miss feeling myself. It's like I'm constantly on high alert for potential danger. I don't like going out at night'. She says she is withdrawn from many social situations and says, 'My own self-image and shameful feelings since the incident have caused me to withdraw from people I love and care about as I think they will view me differently'. She has had trouble entering long term relationships and further, she works in acute mental health and so she is being triggered by day to day activities but she has now been able to just move her career.
18 It is clear from the victim impact statement that your offending has had a major and continuing impact on the complainant. It emerged at the trial that one of her friends who assisted her that night was so affected by your offending that she herself was unable to give evidence. The impact of your offending on the complainant and others must be taken into account in sentencing.
Offence seriousness and moral culpability
19 This was a serious example of rape. The witness evidence as to the observed state of intoxication of the complainant was uniform that she was in no position to consent to any form of sexual interaction. You were unknown to her. The medical evidence as to her state of intoxication around the time of the event makes it clear she was unable to consent. The physical injuries to her lips and neck are consistent with physical violence inflicted by you in the course of the two acts of intercourse. You took advantage of the complainant in circumstances where her friends were seeking to look after her in her intoxicated state.
20 You bear a high moral culpability for these offences. The complainant was not in a position to consent to any sexual interaction with you. Physical injury was sustained during the event, making it clear that notwithstanding her intoxicated state, she was resisting you. It must have been perfectly clear to you that she was not consenting. Your conduct after the event on the road outside where you were actively fencing with those accusing you of a sexual assault was used by the prosecution along with you departing in a taxi as consciousness of guilt. This also bears on your high moral culpability.
21 There were aggravating features of your conduct in that this was unprotected intercourse exposing the complainant to the risk of pregnancy and sexually transmitted disease. Further, the rapes, vaginal and anal, were accompanied by violence as evidenced by the bruising to the complainant's neck, lip and thigh.
22 As was said recently in the case of Director of Public Prosecutions v Mokhtari [2020] VSCA 161, at [41]:
“The very act of rape is inherently serious simply by virtue of the invasion of the victim's bodily integrity without consent. It is quite certainly an act of violence whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of penetration.”
23 This offending must be regarded as objectively above a mid-range of seriousness.
Personal circumstances
24 At the time of this offending, you were aged 20 and were to turn 21 in June 2020. You have no prior criminal history. You are the third in a sibship of nine. You are the third oldest sibling. You were born in Sudan and came to Australia when you were eight along with your family. You settled in the Traralgon area where you grew up. Your mother was the primary carer and your father works as a labourer. You completed Year 12 at the Traralgon High School but did not go on to pursue vocational education. At the time of the event, you were working as a roof tiler.
25 You are not on any medication or have any mental health problems. Your family are supportive of you and you have been in regular contact with them since you have been in custody. There has been limited visits due to distance and the pandemic. You have not had any significant relationships, nor have you been partnered.
26 You commenced using cannabis in your teenage years and use it infrequently. You began drinking in your teenage years and would often do so in social settings. At the time of the event, you were under the influence of alcohol. This was not put, however, as providing any mitigation.
27 Assessing your prospects of rehabilitation are somewhat difficult. You are a first offender. You have family support. You have been able to achieve your Year 12 qualification and you were in the workforce at the time of the offending. With the passing of yours, you will become more mature. While it is a matter of speculation what your prospects of rehabilitation will be, they will depend to some extent on your part to your majority during custody and courses that may be available to you in custody. Bearing all these considerations in mind, I would regard your prospects of rehabilitation as reasonable.
Sentencing submissions
28 The prosecution submitted that this was a serious example of the offence of rape. The court was referred to the maximum penalty in the standard of 25 years' imprisonment and the standard sentence of 10 years for an offence mid-range of objective seriousness. I must have regard to the standard sentence as a guidepost in sentencing you along with all other matters including the nature and circumstances of the offence; your personal circumstances; the maximum penalty; and the impact of the offending on the complainant.
29 The prosecution referred to a number of cases that may be said to be comparable or provide evidence of current sentencing practices following the introduction of the standard sentence regime. I have considered the cases including DPP v Goktogan [2022] VCC 1564. The assistance of that case is limited to the extent that in that case, the prisoner was aged 29 and the sentence followed a plea of guilty. In DPP v Parker [2020] VCC 583, another case referred to, the offender was aged 41 and the sentence itself was not subject to the standard sentence regime. In the case of DPP v Amin [2019] VCC 1756, the offender pleaded guilty to a rolled-up charge. He was 19 and detention in a Youth Justice sentence was available. You are now not eligible.
30 Your counsel accepted that you are not entitled to any discount for pleading guilty or for remorse. Your counsel submitted that the offending here ought be regarded as a signal transaction and thus, there should be substantial if not full concurrency in relation to the individual counts. Your counsel emphasised, however, also that you were under 21 when you committed these offences and are now standing for sentence as 23 and a half. Your counsel submitted that your youth must still be a very significant sentencing consideration and he relied on the well-known case of R v Mills [1998] 4 VR 235. In that case, the court emphasised that for a youthful offender, rehabilitation is usually far more important than general deterrence. Further, it is in the interests of the community for youthful offenders to be rehabilitated.
31 In a later case in Azzopardi v The Queen [2011] VSCA 372, at 34, the court said that youthful offenders are immature and “lack the degree of insight, judgement and self-control of an adult.” The court also said in that case that the court should recognise the potential for young offenders to be rehabilitated because they are typically still at a stage of mental and emotional development and may be more open to influences designed to positively change than to adults who have an established pattern of anti-social behaviour.
32 The court in Azzopardi also recognised, however, that the leniency to be accorded to considerations of youth diminishes with the seriousness of the relevant offending. Here, this is serious offending and thus, the weight to be accorded to your relative youth is lessened but it still remains a salient sentencing consideration, particularly as you are to be treated as a first offender.
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In sentencing you, I have also taken into account the fact that you have been in custody for a period for 711 days since you were arrested on
23 March 2020. The entire period has been during the pandemic. I take judicial notice that conditions in custody have been more onerous over that period with lockdowns; restrictions in movement; lack of access to visits and to programs. You have also had the uncertainty of waiting for the resolution of this matter by way of a sentencing disposition. This alone makes a period on remand more burdensome than a period following sentence. There remains for what appears to be and into the future a continued risk of COVID within the prison system which also is a factor to be taken into account in regarding sentences of imprisonment as more burdensome than three years ago.
Purposes of sentencing
34 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 factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim. I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in ensuring that as far as possible, offenders are reintegrated and rehabilitated into society.
35 In this case, considerations of denunciation are very important. Your conduct in taking advantage of a heavily intoxicated, sleeping young woman for your sexual gratification must be absolutely condemned. It was totally unacceptable and degrading conduct. Considerations of general deterrence are of less relevance given your relative youth. Considerations of rehabilitation into the community are also relevant as it is in the community's interests that you be rehabilitated into society.
36 Your counsel submitted that a controlled, supervised re-entry into society would provide the best protection for the community to ensure your return to the community after a substantial period in custody in circumstances where you went into custody as a young man and will be returned to the community significantly more mature is the best protection for the community. In the future in those circumstances, there can be a proper assessment as to your level of maturity and the reformatory of influence of programs undertaken whilst in custody.
37 I accept the thrust of the submission by your counsel and have sought to apply it in fixing a period after which you will be eligible for parole.
38 In sentencing you for an offence carrying a standard sentence, I must specify how the sentence imposed differs from the standard sentence for an offence of the mid-range of seriousness. I have imposed a sentence less than the standard sentence for the reasons that I have articulated, primarily having regard to your age, to your prospects of rehabilitation and the burden of the period that you have been on remand to date.
39 Would you please stand. The sentence of the court is as follows: on Charge 1 of rape, you are sentenced to nine years' imprisonment; on Charge 2 of rape, you are sentenced to nine years' imprisonment; on Charge 3 of common assault, you are sentenced to one years' imprisonment. I order that all sentences be served concurrently. I order that you must serve five years and six months' imprisonment before being eligible for parole. I declare that you have served 711 days pre-sentence detention excluding today and order that it be deducted administratively.
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