Director of Public Prosecutions v Galuak

[2015] VCC 874

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00562

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAL GALUAK

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2015
DATE OF SENTENCE:	26 June 2015
CASE MAY BE CITED AS:	DPP v Galuak
MEDIUM NEUTRAL CITATION:	[2015] VCC 874

REASONS FOR SENTENCE
---

Subject: Criminal Law; sentence
Catchwords: Pleaded to one charge of rape of 17 year old stranger  committed 8 years earlier. Age of offender uncertain but sentenced as 13 years of age at the time; Sudanese refugee with exposure to severe trauma; post traumatic stress disorder; intellectual disability; non-sexual further offending;  general deterrence reduced as child at time of offending balanced by specific deterrence as chances of rehabilitation slim;  Complainant subjected to humiliating degrading and terrifying attack  causing lasting effect.
Cases Cited: Sherrit v R. [2015] VSCA 1
Sentence: 5 years imprisonment with new non-parole period of 3 years 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Dr N. Rose SC   (At sentence Ms Rogers)	OPP
For the Accused	Ms Z. Broughton	VLA

HER HONOUR: 

1Jal Galuak, you have pleaded guilty to one charge of rape, which occurred on 8 April 2007.  You accosted a 17 year old girl near a railway station, followed her into a park, threatened her with a cricket bat and raped her.  It was a violent and terrifying attack.  She reported it to the police three days later and swabs were taken from her and from the clothing she had been wearing at the time of the rape.

2The complainant had been returning home from an outing when you approached her and asked for a light for your cigarette.  She obliged and then continued on her way along a pathway through the park.  You and another youth followed her and you pulled on her jacket, holding a cricket bat above her head as if to strike her.  She was terrified and offered you her iPod and mobile phone and anything else you could find.

3While the other youth watched, you searched her and took her phone.  You then patted her down, squeezing her breasts and feeling her vagina inside her underpants.  You told her to, "Shut the fuck up," and put her in a headlock and dragged her further into the park to a secluded location near a fence.  After arguing with the other youth who exhorted you not to rape her, you dragged her further into the park and the other youth left, not to be seen again.

4As you dragged her, you told her, "Shut the fuck up, bitch," and then told her you were not going to rape her but that you had a condom.  You still had the cricket bat in your hand and told her to undress.  She complied out of fear and you told her you had a gun, patting your pocket, leading the complainant to believe that you did.  Then, using the light from your mobile phone, you inspected her vagina and made a comment about it, before raping her with your penis.

5You continued to penetrate her in various ways for about 20 minutes, offering her money, which she refused saying she just wanted to go home.  When you saw a person walking nearby, you told the complainant to shut up and lie still, threatening that if the person came close, you would kill them.  When the complainant's phone rang twice, you turned it off.

6After raping her vaginally, you told her to give you oral sex, which she did.  You then told her to get dressed and returned her phone.  You told her to forget what you looked like and threatened to kill her and any of her friends if you saw them in what you called, "My area," and that you would follow her and find out where she lived.

7The complainant walked away and met two friends who had come looking for her, as they had been worried when she had not arrived as expected.  She was very fearful and upset and her friends comforted her.  She has provided an articulate and thoughtful victim impact statement, in which she described the physical and emotional pain she suffered at the time, and which continues, to some extent, to this day.  She was anxious, she lost her independence and her self-esteem suffered.  The experience affected her final year of school.

8When the case emerged again two years ago, she felt anger and anxiety again and had to take time off work to deal with it.  She also referred to the other people in her life and in the community, who have suffered indirectly from the impact of your crime.  Fortunately, from what I can discern, she seems to have been able to deal with the trauma in a resilient way.

9In 2011, you provided a sample of your DNA to the police as a result of being arrested for drink driving offences.  The sample was placed on the national DNA database.  Several months later, in January 2012, police were informed that a match was established between the DNA taken from you, the driver, and the DNA profile found on the clothing worn by the victim.

10The police located your address, but you refused to surrender yourself.  About a week later, on 24 January, you were arrested for an unrelated matter and were interviewed in relation to this matter, giving no comment answers.  A new buccal swab was taken and analysed, and another comparison was done with the result that the DNA likelihood ratios were extremely strong.  You were not charged until September 2014, but by then, you would have been aware that the charge was likely and so you have had the matter hanging over your head for that period of time, whilst in custody, with the opportunity to reflect on your culpability.

11You were aged 13 years and seven months at the time of this offence.  Records show that in August 2007, you pleaded guilty to a series of six criminal charges in the Children's Court, some of which were committed before the rape and some after, and as a result of which you were remanded in custody.

12Accordingly, your prior history is limited to a number of driving offences, some of them serious, committed at the age of 12, and a series of dishonesty and violent offences for which you were dealt with in January 2007.  All these matters were heard in the Children's Court, of course, and so they are not prior convictions for sentencing purposes, but they indicate a background of trouble with the law from an early age soon after your arrival in Australia.

13That tendency continued with frequent appearances in the Children's Court, including a number of serious charges of violence.  As a 13 and 14 year old, you spent time serving two separate sentences in a youth residential centre and periods of probation followed until you entered the adult jurisdiction in 2012.

14For another series of violent offences, you were sentenced in that year to a period in a youth training centre and a few months later, in September, for charges that were not dissimilar.  You were sentenced to prison for three and a half years with a non-parole period of 18 months, a sentence you are still serving.  You have not been granted parole and your due release date is in February 2016.

15I have read several reports, which have been obtained over the years.  The most recent being of Ms Carla Lechner, dated May 12 2015.  In a report prepared by a youth justice case manager in 2006, the writer noted that you were stated to be aged 12, but there were suspicions held by some that you may have been older, and your mother could not clarify the matter.  You had been placed in Year 9 at school, but you said this had been on the basis of your size.  It seems that the writer considered you may have been as old as 14 at that time.

16You were born in Sudan and came to Australia via Egypt in May 2005 with your mother and siblings, having left Sudan because of the civil war.  Your father had remained in Sudan and is considered to have been kidnapped or to have died.  You claim to have been tortured in the Sudan by rebels who captured you.  Although that has not been verified, there are references in the reports which suggest it is likely.  The reports of your having suppressed bad memories in the past also lend it support.  It appears you also suffered badly from mistreatment in Egypt.

17Apart from your mother's report to a psychologist in 2006, that you had been arrested and beaten by soldiers when you were about ten, there is nothing to support these claims.  That is hardly surprising in the circumstances.

18The learned prosecutor urged me to place little weight on these claims on the basis that they were unsubstantiated.  It is well-known that children growing up in communities beset by civil war, with the accompanying chaos and lawlessness of a dysfunctional society, may suffer serious consequences.  While some, undoubtedly, escape the worst of those consequences, others are known to act out the emotional effects in various ways, including committing crimes.

19The professional people who assessed you in the earlier years reported your exposure to trauma and I take into account the strong likelihood that you were adversely affected by it and that the intellectual disability you suffer from likely contributed to it.

20Susan Whitelaw, the psychologist who assessed you in June 2006, a year after your arrival in Australia, was provided with papers which gave your age at the time as 12, but you told her you were 17 and Ms Whitelaw considered that was consistent with your appearance.  In any event, I must sentence you as a 21 year old now and take into account that you were 13 when you committed the offence.

21Ms Whitelaw conducted tests, which disclosed that you had a significant intellectual disorder, which exacerbated a severe behaviour disorder she diagnosed on a clinical basis.  She considered that cultural factors had contributed to your lack of understanding of the seriousness of your behaviour.

22Ms Lechner stated that previous reports had indicated Post-Traumatic Stress Disorder as a likely diagnosis and that your recent description of that part of your life confirms it in her view.  She considers that your symptoms of Post-Traumatic Stress Disorder continue to haunt you.  The fact that you had not clearly disclosed the causes and symptoms of this disorder previously does not rule out their likely validity, given the combination of circumstances, including your youth at the time of the earlier assessments, your intellectual disability and lack of English and the fact that civil war had driven your mother and siblings from your homeland.  Accordingly, I accept that you suffer from the disorder, but its effects play a limited role in this sentence.

23The reports to which I have referred also set out the difficulties you experienced as a newly arrived refugee in this country.  Your primary schooling had been interrupted and spasmodic, and here in Melbourne you had about two years of secondary school, during which you learnt little English and have remained illiterate.  The English you have learnt since then has been acquired in prison.  Other problems are that you suffer from depression, which Ms Lechner attributed to the fact of your incarceration and, in the past, alcohol abuse. 

24During the plea hearing, I was referred to a decision in the case of Sherrit[1], which deals with sexual offending committed by a child, where the offender is an adult when sentenced, as in this case.  Priest JA there referred to other authorities which established that where the offender has, over the years since the offence, achieved a significant degree of rehabilitation and there has been no further offending, this might be good reason to mitigate the penalty[2].

[1] Sherrit v R [2015] VSCA 1

[2] Ibid, para 34

25That is not the case here as you continued to offend, although admittedly, not in similar ways.  Other than having completed courses in prison, you have not demonstrated that there are any chances of rehabilitation and it must be said that your prospects are poor.

26However, His Honour also said:

"Common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the applicant's moral culpability must take into account that what was done was done as a child; and that even absent statutory sanction, general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults”[3].

[3] Ibid

Accordingly, while general deterrence is of very great importance in sentencing for such a serious offence as rape, Its importance in this case is somewhat reduced because you were a child at the time.  But because your chances of rehabilitation are so slim, specific deterrence is of much greater importance.

27It can be said in your favour that you have expressed remorse and are ashamed and sorry for what you did.  To some extent, that is indicated by your plea, which I accept as an early plea given that there has been no delay since you were charged, following a long delay since you were interviewed.

28In pleading guilty, you have avoided the need for a trial and spared the complainant from having to give evidence and be cross-examined.  That is an important matter and deserves the credit to which you are entitled, that is, some reduction of your sentence.

29As to the application of the decision in the case of Verdins, it was not submitted by Ms Broughton, who appeared on your behalf, that there was any nexus between your mental health problems and the offence, but that your experience of prison is likely to be more burdensome than for others who do not suffer from Post-Traumatic Stress Disorder.

30I am told that while on the one hand, you have completed a large number of courses -  and this morning, I have seen those certificates -  on the other hand, you have been moved from one prison to another and you are now being held in protection owing to the consequences of being the victim of an assault.  Without knowing more, I can reach no conclusion about the likely effect of your mental state on your experience of prison other than to allow for some degree of differentiation from other prisoners and the possibility that the symptoms might deteriorate over time whilst in custody.

31Ms Broughton submitted that an appropriate sentence would be a prison term followed by a community corrections order.  This would only be possible if the prison sentence was less than two years.  I have concluded that the gravity of the crime warrants a longer sentence.  It was conceded by Ms Broughton that this was a serious example of a serious offence.  Indeed, the maximum penalty for the crime of rape is 25 years' imprisonment.

32In this case, a very young woman was subjected to an attack that was humiliating, degrading and terrifying and caused a lasting effect upon her.  The court must sternly denounce such a crime and impose a just punishment, while at the same time avoiding a crushing sentence.

33I sentence you to five years' imprisonment.  I fix a new non-parole period of three years and six months.  That is the time which you must now serve before being eligible for parole.  If you had pleaded not guilty to the charge, I would have sentenced you to prison for six years and six months with a new non-parole period of four years and six months.

34The Defence has urged me not to place you on the sex offenders' registration as you were very young at the time and as Ms Lechner is of the view that your risk of reoffending is low to moderate.  As I said earlier, you have not reoffended in this way since the offence and I shall exercise my discretion by not making that order.

35Are there any other matters?

36MS BROUGHTON:  No, Your Honour.  Whether there needs to be a comment about the date that the sentence is to take effect, but it would not take effect ‑ ‑ ‑

37HER HONOUR:  In a state sentence, I do not think I have to do that, do I, Dr Rogers?

38DR ROGERS:  No, that is all right, Your Honour.  I am just new into the matter and I am not quite up to speed on the priors.

39HER HONOUR:  No, I do not have to do that.

‑ ‑ ‑