Director of Public Prosecutions v Duale
[2021] VCC 1746
•8 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00843
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YASIR DUALE |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 November 2021 |
DATE OF SENTENCE: | 8 November 2021 |
CASE MAY BE CITED AS: | DPP v Duale |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1746 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Common assault – assault with intent to commit a sexual offence –
Legislation Cited: Criminal Procedure Act 2009; s145
Cases Cited: Worboyes v The Queen [2021] VSCA 169, Rossi v The Queen [2021] VSCA 296
Sentence: Total effective sentence of three years and 10 months imprisonment with a non-parole period of two years and six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | The Office of the Director of Public Prosecutions |
For the Accused | Dr M. Fitzgerald | Doogue and George Criminal Lawyers |
HIS HONOUR:
1Yasir Duale, on 4 November 2021 at the County Court of Victoria at Melbourne, you pleaded guilty to the following charges on Indictment No.K13213965:
Charge 1, common assault of Sofia Lenehan[1]. This charge has a maximum penalty of five years' imprisonment.
Charge 2, common assault of Tahlia Culley[2]. This charge has a maximum penalty of five years' imprisonment.
Charge 3, assault with intent to commit a sexual offence of Angelina Ranclaud[3]. This charge has a maximum penalty of 10 years' imprisonment.
[1] a pseudonym name
[2] a pseudonym name
[3] a pseudonym name
2You have consented to and pleaded guilty to a related summary offence. This charge was transferred to this court pursuant to s145 of the Criminal Procedure Act. It is Summary Charge 2 which is commit an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment.
3You have admitted your prior criminal history as follows:
·On 10 October 2019, on charges of failing to answer bail, theft from a shop, retention of stolen goods and commit an indictable offence on bail you were placed on a without conviction CCO for a period of six months with 50 hours unpaid work. These offences amount to a breach of that CCO.
·On 17 December 2012, charge of robbery when you were placed on a $500 good behaviour bond for a period of one year at the Sunshine Children's Court.
4At the day of your plea there were some 406 days of pre-sentence detention.
The circumstances of your offending
5Three separate offences occurred in a six day period in December of 2019. At the time of the offending you were 24 years old. You were on bail for unrelated offending and as I have previously announced and a community corrections order as previously set out.
Charge 1
6At about 10 pm on 7 December 2019, Sofia Lenehan was waiting at a tram stop near the Footscray railway station and scrolling through her phone with headphones on when you approached her. She was waiting at the tram stop to travel home after finishing work at a nearby restaurant. When you approached Ms Lenehan, you stood in front of her and held out your hand to shake her hand and when she went to shake your hand you grabbed her and pulled her hand towards your face to kiss it. You tried to do that on a couple of occasions and on both occasions Ms Lenehan pulled her hand away and told you not to do it.
7You then offered Ms Lenehan a drink from a large Sprite bottle that you had been carrying and told her that it had a little bit of vodka in it. You sat down next to her and put your hand on her thigh and slid your hand up towards her groin. Ms Lenehan told you, in a loud voice, 'No, fuck off, don't do that.' And slapped your hand away. You then told Ms Lenehan to chill out and put your hand on her shoulder and Ms Lenehan then ran towards Footscray railway station where she reported the incident to protective service officers.
8You were captured on CCTV at the Footscray railway station, walking from the station toward the tram stop. The footage also captured Ms Lenehan running from the direction of the tram stop back towards the railway station.
Charge 2
9At about 3 am on 8 December 2019, Tahlia Culley boarded a Sunbury line train at Flinders Street Station to travel home after she had been attending a Christmas work function. Prior to the train getting to St Albans you got onto the train in her carriage and sat opposite her. You had a can of alcohol in your hand and you were talking to yourself saying random things. Ms Culley thought that you were affected by alcohol.
10When the train was around about the St Albans station you asked Ms Culley if she was okay and then you ran your hand up her leg from her shin to her knee. Ms Culley told you to, 'Please do not touch me' and you then started talking to yourself again. At that time there were about 10 other people in the carriage. A male seated about three rows away from Ms Culley made eye contact with her and asked if she was okay. She indicated that she was all right.
11You then ran your hand up Ms Culley's leg from her shin to her knee on two further occasions prior to getting off at Watergardens. After you got off the train, the male who had asked Ms Culley if she was okay told her that he in fact called the police. When she got to the Sunbury railway station she was approached by protective service officers and she reported the incident to them.
Charge 3
12On the evening of 13 December 2019, Angelina Ranclaud went to the Sunshine railway station with her cousin where she met up with them and other people who were drinking at the station. Ms Ranclaud was also drinking and she became drunk. While she was drinking with the group, you approached her and offered her a small can of Smirnoff vodka. After Ms Ranclaud had been speaking to you for a while, you then invited her back to your house in St Albans to continue the drinking. Ms Ranclaud had not met you before that night but as you appeared friendly and she was comfortable with you she agreed to go back with you to your house.
13When you both got to the St Albans railway station, Ms Ranclaud needed to go to the toilet and CCTV footage at the station depicts both of you entering the toilet at approximately 9 pm and exiting the toilets at about 9.10 pm. The two of you have then re-entered the toilet some two minutes later and you tried to kiss Ms Ranclaud and when she refused your advances, you punched her on multiple occasions to the head and she ended up on the floor of the toilet cubicle. You also pulled off her pants and pulled down her underwear.
14Ms Ranclaud screamed out for help and her screams for help were heard by the protective service officers who were at the station. Protective service officers knocked on the toilet door and asked what was going on and you yelled at them to 'Fuck off, none of your business.' The protective service officers then demanded that you open the door and when you did the officers observed Ms Ranclaud on the floor, without any pants on and she was pulling her underwear up from her knees towards her waist.
15You were arrested and cautioned and taken back to the Sunshine police station to be interviewed. During the interview you answered, 'No comment' which of course is your right, when the allegations were put to you.
16When the police searched the toilet cubicle, they found an unwrapped condom, a tissue with blood on it and Ms Ranclaud's wig. Ms Ranclaud's face was swollen and she complained that she had a sore neck, throat and jaw. She was then taken to the Sunshine Hospital by ambulance for assessment and treatment. At the hospital she was treated by Dr Lee who noted the following injuries to Ms Ranclaud:
·She had small haematomas and bruising to her scalp towards her forehead.
·Bruising and swelling around her face and jaw with some minor restriction to the opening of the jaw due to pain.
·Mild tenderness and bruising around the base of the right side of her neck and more superficial bruising and tenderness to the right side of her chest wall below her shoulder.
·Mild tenderness/bruising to her left shoulder with no underlying joint injury.
·Superficial bruise to her left knee. And
·Minor superficial lower lip laceration with no associated dental injury.
17Given the extent of the bruising and swelling to her face a CT scan was performed to rule out any facial fractures. No fractures were detected. Upon being admitted to the emergency department of the hospital, Ms Ranclaud underwent a breathalyser test which recorded her alcohol level at 0.228.
Related summary offence: committing an indictable offence whilst on bail
18You had been bailed on 16 December 2019 to appear at the Sunshine Magistrates' Court on 24 January 2020 in relation to unrelated charges of causing injury intentionally and/or recklessly and an unlawful assault.
19I note that on 20 May 2020 at the Sunshine Magistrates' Court you were sentenced to seven months' imprisonment for those assault charges. In respect to the offences before this court, you have served a total of 406 days' pre-sentence detention.
20You have had one period on bail for these offences from 11 September 2020 until 25 November 2020. The charges were resolved to a plea on 27 April 2021.
21The victims in this case had an opportunity to file victim impact statements and have not done so.
Your personal circumstances
22At the time of the offending you were 24 years old and you are now 25, soon to be 26 years old. You were born in Somalia, you are one of six children. Your father was killed during the civil war in Somalia. You were less than 10 years old, your mother also died during childbirth.
23Your family escaped from Somalia initially through Kenya and settled in Uganda. You had an aunty who had moved to Australia in 1999. Your aunty sent funds to Uganda to support your family, that is your siblings in Uganda. You started primary school in Uganda. You were able to learn some English at primary school. Your older brother and sister in effect acted as the parents to all of your siblings.
24In 2010 your family moved to Australia. You were 15 to 16 years of age. You were initially enrolled in Year 10 at Braybrook school, formal education was difficult for you due to your limited English and no formal secondary education prior to coming to Australia. You repeated Year 10 and then later enrolled in a VCAL course at the Sunshine TAFE.
25Whilst at Sunshine TAFE you started to socialise with regular cannabis users. You became a regular cannabis smoker yourself. Unfortunately for you, that developed psychiatric problems for you and your family had you were admitted to the Sunshine Hospital. You remained in Sunshine Hospital for some months and then you were transferred as an inpatient to Orygen Youth Health. You have recovered and now ceased to use cannabis.
26You originally worked in a factory in Laverton. You then moved to Shepparton to assist your aunty in the conduct of her childcare business. Whilst you were there, she encouraged you to obtain work as a meat worker. You then obtained work at Tamworth as a meat worker. You moved to Junee in the same industry. You worked 12 hour shifts, Monday to Friday, for approximately two years in total. Whilst working in regional New South Wales you commenced heavily using alcohol and gambling your hard earned money on the poker machines.
27You then moved back to Victoria and worked for Hardwicks in Kyneton, another meatworks establishment and whilst working there you lived in Melbourne. You were driven to and from your work by a co-worker. When your co-worker resigned his position at Hardwicks you were then unable to continue your meat working activities in Kyneton.
28In 2018 you were unemployed and on Centrelink payments. You resumed your heavy drinking. Your Centrelink payments were suspended in the latter part of 2019 due to your failure to attend appointments. The spiral of no benefits, homelessness and alcohol intake was commenced in earnest. The Salvos organised hostel accommodation for you but the dishonesty offending was the forerunner to the offences before this court.
29Since being placed on remand for the offences in December 2019 you have served a seven month sentence for other offences, for violence committed against your partner as I understood it.
30You had a brief time on bail between September and November 2020, otherwise you have been in prison awaiting the outcome of these offences. Ultimately these matters were resolved to a plea before the commencement of a contested committal in April of 2021.
31Whilst on remand you have engaged in the limited courses on offer due to the COVID-19 restrictions, you have completed Alcohol and Me, the white card for construction work and a traffic safety course. You are a skilled meatworker by occupation.
32You have re-engaged with your family but on your release from prison you are unable to return to live with them due to the bail breach that now has seen you return to prison in November 2020.
Sentencing considerations
33The basic purpose for which a court may impose a sentence just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
34I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kind of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and the few cases that are relevant would be and are distinguishable from your cases, indeed they are from one another.
35Of course current sentencing practices is just one of the considerations that I have to take into account in this process.
36The only appropriate sentence for all of this offending is a term of imprisonment with a non-parole period to encourage and control your rehabilitation after you have completed your time in custody.
37You have pleaded guilty to these charges. Whilst the plea was finalised after some negotiations and cannot properly be described as an early plea, it has obviated the need of any of your victims to relive the events by giving evidence in court against you.
38Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
39Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your behalf.
40Your pleas of guilty also have a further utilitarian value because the plea is given in times when, due to the COVID-19 pandemic, you have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. This is sometimes referred to nowadays as the Worboyes discount.
41The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic and even more so in the sentencing process.
42Most recently these considerations were reinforced by the Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296 which recited paragraphs 35 to 39 from Worboyes and highlighted the following and I will read it:
'We therefore consider, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
43The Court of Appeal further stated:
'For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
44In addition, lockdown restrictions on prisoners and limited visits and courses available to prisoners during the COVID-19 pandemic conditions in gaol have made your time on remand more onerous than in normal times. I take these matters into account in fixing your final sentence for these offences.
45The offending by you is serious. You have committed these three offences in a compressed timeframe of six days. At the time of your offending you were on bail and serving a community correction order for previous offending.
46The objective seriousness of your offending is indicated by the following matters:
(1) Each of your victims were offended against at night whilst they were using public transport to go about their lives;
(2) You were unknown to any of your victims;
(3) You chose your victims at random;
(4) In Charges 1 and 2, you continued to offend against your victims after each of them had clearly declined your approaches to them;
(5) In Charge 3, you have engaged in punching and hitting of your victim in the close confines of a toilet cubicle at a railway station. Your assault was only ceased by the intervention of PSOs who answered the distressed screams of your victim; and
(6) Your victim for Charge 3, required medical treatment at hospital due to the injuries you inflicted upon her during your attack.
47I take into account the matters set out in your personal circumstances. You are relatively young. You have experienced the prior circumstances of the civil war in Somalia, loss of both parents at a very young age and the resulting life as a refugee in Uganda and now Australia.
48Your education was interrupted and limited due to your life circumstances. You have a limited criminal history which has been driven by alcohol abuse, homelessness and poverty.
49I assess your prospects of rehabilitation as fair. You have a proven capacity to obtain and retain employment when sober. You have the support of your sibling family who have met the challenges of life as refugees here in Australia. If you can control your abuse of alcohol you will be able to stabilise your life with work, accommodation and family support upon your release from prison.
50Your counsel has specifically submitted that the principles of Verdins case or Bugmys case have no application to your sentencing considerations. That was an appropriate concession.
51I have moderated the cumulation of individual sentences for each of your charges here so as to ensure there is not a crushing sentencing imposed upon you. At the same time, acknowledging the separate criminality for each of the charges. Further, I have moderated the overall sentence to take into account you have served a full seven month sentence for other offending but have lost the chance for any concurrency for these offences. In effect, the totality principle of sentencing applies here in your case.
52The offending calls for a sentence of imprisonment with a non-parole period to satisfy the sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and protection of the community.
53I sentence you as follows.
54In respect of Charge 1, you are convicted and sentenced to four months' imprisonment. In respect to Charge 2, you are convicted and sentenced to four months' imprisonment. In respect of Charge 3, you are convicted and sentenced to 42 months' imprisonment. That is the base sentence. In respect to Summary Charge 2, you are convicted and sentenced to one month imprisonment. I order cumulation for Charge 1 of two months' imprisonment and for Charge 2, two months' imprisonment. That is a total of 46 months of imprisonment or three years and 10 months.
55I set a non-parole period of two years and six months' imprisonment but for your plea of guilty I would have sentenced you to six years with a four year non-parole period. I declare you have served 406 days' pre-sentence detention and I will sign the disposal order that was sought when I get it.
56Does that cover everything, gentlemen?
57MR BROWN: It does, Your Honour, I believe.
58DR FITZGERALD: It does, I haven't yet seen the disposal order so I will ‑ ‑ ‑
59HIS HONOUR: Sorry, I will read it to you. It's the usual recitations at the start and then the scheduled items are - I think it should say a black - back top it has got - underwear, blue jeans, a condom, wig and blood stained tissue.
60DR FITZGERALD: I think most of those are properly of the complainant in any event so no issue taken with those.
61HIS HONOUR: Thank you. I'll sign that accordingly.
62COUNSEL: If Your Honour please.
63HIS HONOUR: Thank you both for your assistance and your submissions.
64Mr Duale, I will leave the link open for you and Dr Fitzgerald to speak but just from me, the judge, your sentence is three years and 10 months, the minimum term is two years and six months and your pre-sentence detention is 406 days.
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