Director of Public Prosecutions v Goktogan
[2022] VCC 1564
•20 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GOKMEN GOKTOGAN |
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JUDGE: | MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2022; 7 July 2022 and 15 September 2022 | |
DATE OF SENTENCE: | 20 September 2022 | |
CASE MAY BE CITED AS: | DPP v Goktogan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1564 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Rape – Sentence Indication Hearing – Plea –Victim Impact – COVID times – Deportation – Mitigation
Legislation Cited: Sentencing Act 1991 (Vic) s 5(2)(e)
Cases Cited:DPP v Toomey [2006] VSCA 90; Guden v The Queen [2010] VSCA 196; Phillips v R [2012] VSCA 140; Chenhall v The Queen [2021] VSCA 175; Worboyes v R [2021] VSCA 169
Sentence: 8 years imprisonment with a minimum non parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood | Melbourne Lawyers & Mediators |
HIS HONOUR:
On 28 June 2020, the victim arranged to meet up with a friend in Footscray near Whitten Oval. She took public transport, in this case a bus in replacement of a train. This simple straight-forward trip in a modern city should have been uneventful and safe. For the victim it was neither.
You, Gokmen Goktogan were in the vicinity of where the victim got out of her bus. You spoke to or tried to speak to the victim, but she was not interested in a conversation with you. She headed to where she met up with her friend. After about 30 minutes or so she set off to go back home. She walked to a replacement bus stop on Sunshine Road near West Footscray Station. You came up to the victim when she was alone at the bus stop. Completely out of the blue, you commenced to touch her, grabbing at her bottom, and putting your hand under her skirt and fingers onto her underwear. She was terrified, shaking in fear hoping the bus would come. You continued touching her, ultimately inserting your fingers into her vagina. You then directed her down a nearby dark and secluded path with trees and foliage obstructing public view.
The victim by this point was shaking and crying. As you forced her down the pathway she was saying, “stop, stop, please stop”. You did not, rather you ignored what she was saying and what she was making clear to you. She did not want you do touch her at all. She was saying “stop, stop” as you again penetrated her vagina with your finger. You then forced your penis into her vagina removing and reinserting it a number of times. This whole nightmare went on for what the victim thought was 20-30 minutes.
When you stopped you said to her, inaccurately, “you’re ok, you’re ok”. Plainly she wasn’t. She had just been raped by you. She took the chance to run to the bus stop and jump on the bus that fortunately had just arrived. She was distressed and crying as she rang her mother. Others on the bus were alarmed by her distress. The police were called and they met her and her mother shortly after.
CCTV footage was obtained and made public as the police sought assistance to find the perpetrator.
Some two weeks later and having seen the CCTV images you went to the police and identified yourself as the man shown following the victim. However, while admitting a sexual encounter, you denied penetrative sex or rape. A sample of your DNA was obtained and some months later it confirmed the penetrative sex as the victim alleged. You were charged with rape on 23 August 2021.
On 6 July 2022 you pleaded guilty to a single rolled up charge of rape encompassing all the penetrations.
The gravity of your crime is self-evident. It remains true that it is every woman's nightmare to be grabbed off the street and raped. It is a scenario that creates justifiable fear and anger in the community. The streets of a civilised, modern city should be safe for all women. This basic concept is one that the courts have a role in protecting and upholding. This is done by punishing sternly those who commit these dreadful sexual crimes that create fear and undermine proper social values. Those like you who use force and selfishly put their own perverse sexual gratification, above the dignity and bodily integrity of another person, will be met with years of imprisonment.
The courts must send clear messages of deterrence to anyone who could possibly contemplate sexual offending of this kind or of any kind. Protection of the community, especially of women using public transport, is paramount, and thus it is a significant sentencing purpose in your case.
10.The gravity of the crime of rape is rightly acknowledged by the very long maximum term of 25 years imprisonment fixed by our Parliament. I must and I do keep well in mind the maximum term fixed for this crime. In addition, Parliament has established that the crime of rape is a standard sentence crime with the standard sentence being set at imprisonment of 10 years. Finally, the Parliament has also categorised the crime of rape as a category 1 offence which requires a sentence of imprisonment to be imposed. If it need be repeated, this array of matters impacting on the sentence to be imposed, makes it crystal clear just how seriously our Parliament and our community views the crime of rape and the inevitable adverse impact on the victim.
11.I must and I have considered the maximum term and the standard sentence as guideposts in the sentencing process. I have considered all the circumstances by the process of instinctive synthesis including the circumstance of this being a standard sentence crime.
12.Before leaving aspects which go to the question of the gravity of your crime, I note that all the penetrations, both digital and penile, have been rolled into a single charge of rape. This adds to the gravity of the crime, although it remains the case that you fall to be sentenced for one charge of rape.
13.I hope I have, in describing the seriousness of your crime, made clear that the moral culpability for what you did is very high. You as an intelligent young man knew or must have known what you were doing was deeply wrong and harmful, but nonetheless you went on forcing, yourself on the victim, ignoring her pleas, raping her and then pathetically telling her “you’re ok”.
14.Understandably the impact on the victim has been profound. I had read her victim impact statement and then at the formal plea hearing I heard her read her victim impact statement and speak of how deeply her life has been affected.
15.She wrote that after the rape, she was not able to do any of the ordinary and enjoyable things in her life. In fact, she found it hard to eat, sleep or go to work. She isolated herself in her room, self-harmed and thought of suicide. Her favourite simple pleasures of singing and listening to music faded away. She no longer socialised as she felt anxious and scared, not trusting anyone. As the Courts have learnt by reading and listening to Victim Impact Statements, the impact of sexual violations is so often deep and enduring. That is the case here.
16.However, the victim spoke courageously of her determination not to be crushed by what had happened. In what she said she gave a sense of a slow recovery, while making it clear that what you did to her will impact on her lifelong. It would seem that the fact that the court proceedings are now coming to an end is aiding in the process of slow recovery. This aspect was captured best by Justice Vincent calling on his vast experienced and his insight into the impact of crimes of this kind, when he said in an appeal against the inadequacy of a sentence imposed in a case of multiple sexual assaults by a Christian Brother:
‘This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.’
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[1]
[1] DPP v Toomey [2006] VSCA 90 at [21] and [22].
17.In accordance with individualised sentencing, your own personal circumstances need to be considered. They are almost unnervingly simple and straightforward. I say that because those that know you best, your wife in particular, are utterly bewildered and shattered that you could do what you have done. They knew you as a man with many good qualities. Your dreadful crime is so far from the person that your wife knows, having met, married and lived with you for some years before this inexplicably grave offending.
18.You and your wife first met, as it were, online in 2014 when you were in your early 20’s. She travelled to Turkey in 2016 to meet you and your family. You and she became engaged and commenced the process of trying to secure a visa for you to migrate to Australia. You were then married first in Turkey and then later in Australia in 2018 when you had secured a visa. In Melbourne you first studied to improve your English. Ultimately in February 2020 you secured work in a factory manufacturing aluminium doors and windows. You were doing well. Your wife was employed in IT. You were saving for a house while living with your wife’s parents. You were, as I have said, coming home from work to your wife and her family when you saw the victim and committed the crime. As I have said you ultimately went to the police two weeks later when your image from the CCTV footage was made public. I should add that you went with your wife, who was bewildered and devastated, feelings that remain with her to this day. She remains supportive. As an added hardship, you and she have a son now aged 10 months old. I will say more of the impact of your inevitable separation from your family shortly.
19.You are now 29, born in Turkey, where your parents and brothers still reside. You have no prior or subsequent criminal convictions. You are able to call on your previous good character in mitigation. On bail since August 2021, you continued to be law-abiding. Thus, as to your future prospects, it is likely you would remain law abiding. However, other policy matters are relevant here. Although it is a matter ultimately for the Federal executive government, it is almost, if not completely certain, that you will be deported on release from prison. You will return to Turkey where you do have family. It is where you grew up and lived into your 20’s. But you will be separated from you wife and child who are Australian citizens and want to live in Australia. That separation will weigh heavily on you while in prison making each day in prison more onerous. You had hoped to live lifelong in Australia with your wife and family. I take into account the fact that prison will be more onerous on you as a consequence of your inevitable deportation.[2]
[2] Guden v The Queen [2010] VSCA 196; 28 VR 288.
20.Although there is no other choice, I do not ignore that prison for a first offender is always onerous. Additionally, you will be in prison for the first time with limited English and in a prison in circumstances of some ongoing pandemic restrictions.
21.The most significant consideration or matter put in mitigation is your early plea of guilty. There are a number of dimensions or aspects to your the plea of guilty, each of which are independently important in mitigation.
22.The first is that at no point did you call for, or test the complainant, or any witness in a committal or trial. In my now long experience, taking this course is uncommon especially where the allegations are rape. Often and despite powerful evidence to the contrary, an accused asserts the complainant was consenting or that he believed the complainant was consenting. The committals and trials that follow are inevitably traumatic for the victim, notwithstanding the many advances there have been in providing protections to complainants who have to give evidence in court proceedings. The course you have taken has meant the victim did not have to endure any cross-examination or analysis of what she did or did not do. The relief for her is a significant matter.
23.Your plea of guilty also relieved the prosecution of the always taxing task of proving sexual offending to the standard of beyond reasonable doubt. You accepted responsibility and, by that, gave vindication to the victim.
24.Your plea is also a significant expression of remorse. You acknowledge that you have done a grave wrong and significantly hurt another person. You are contrite. I consider your remorse as genuine.
25.Your plea has a utilitarian benefit as it facilitates the course of justice. The law is clear that a plea must always attract a benefit or a lesser sentence than would be the case if there was no plea but rather a trial that resulted in the end in a finding of guilt.[3] The extent of that benefit or discount, as it is often referred, has loomed large in the context of the pandemic when the utilitarian benefit to the system of a plea of guilty, as opposed to a trial, is plainly more pronounced.
[3] Sentencing Act 1991 (Vic) s 5(2)(e); Phillips v R [2012] VSCA 140 at [52]; Worboyes v R [2021] VSCA 169 at [35]-[39].
26.The Court of Appeal in the important decision of Worboyes[4] explained the importance of sentencing judges giving greater weight to pleas of guilty in these times of the pandemic, or more particularly, these times when there are ongoing delays in the criminal justice system due to the continuing effects of the pandemic. The discount must be more pronounced and palpable, or obvious, to an accused and to others, so that those who are guilty are encouraged to plead guilty. The Court in Worboyes said:
[4] Worboyes v R [2021] VSCA 169.
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, 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.[5]
[5] Ibid at [35].
27.In providing clear direction to sentencing judges the Court in Worboyes concluded:
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.[6]
[6] Ibid at [39].
28.If there be any doubt, the Court of Appeal decision in Chenhall,[7] handed down on the same day as Worboyes, explicitly said that if a judge declines to give a greater sentencing benefit to a plea made in COVID times then the judge falls into sentencing error.
[7] Chenhall v The Queen [2021] VSCA 175 at [35].
29.Accordingly, there is in this case, very significant mitigation that flows from your plea of guilty made when it was and in circumstances where the criminal trial lists are still adversely effected by the delays caused by the pandemic.
30.By operation of the standard sentencing regime and the matters raised above regarding a plea in COVID times, there is very limited guidance that can be provided by other sentences. Each case must receive individualised sentencing, but that said there is nothing in this case that requires or demands it be an outlier either in terms of mercy or severity.
31.What requires some further elaboration is that in this case there was an application made by your lawyers that I indicated to you what sentence I would impose if you pleaded guilty. The amendments to the provisions of the Criminal Procedure Act 2009 (Vic) that now allow a court to give an indication of the length of a prison term has, it would seem, had an impact on bringing forward to resolution cases that may otherwise have languished in the long trial list.
32.In the making of that application, it was well understood that the sentence that would be indicated was a sentence of many years of imprisonment. Having weighed up all the matters utilising or relying on the well-known sentencing methodology of instinctive synthesis, I concluded that a sentence of 8 years with a minimum term of 5 years was the just and appropriate sentence for this crime committed by you with all your personal circumstances and future difficulties.
33.This sentence was below the standard sentence but, in my view, this was justified by reason of all the circumstances including the gravity of what you did, your previous good character, your remorse, the onerousness of jail in your circumstances and most importantly the early plea of guilty. I gave that indication.
34.You accepted this undoubtedly stern sentence as indicated. You pleaded guilty on arraignment.
35.Your Counsel at the formal plea emphasised the matters I have raised thus far and added that by operation of the principle of parsimony I could impose a lesser sentence than the one indicated. Such an outcome is permitted by the legislation. What is not permitted is to impose a more severe sentence.
36.I have revisited again all the material including what I heard as part of the victim impact statement. In saying that, I have treated the impact of your crime on the victim in a measured way ensuring the gravity of the offending and the impact on the victim have not swamped the other important matters put in mitigation.
37.In the end having considered all the circumstances including the fact of, and the operation of, the standard sentencing regime and all the sentencing purposes, in particular denunciation, deterrence to others, protection of the community and just punishment, I have come to the grim conclusion that the lengthy sentence of imprisonment that I indicated prior to the plea should be, and will be, the sentence I actually impose.
38.I recognise that in imposing the head sentence you may be required to do each and every day of that 8 years. I have allowed for the potential that you be released on parole. Whether you are and when is for others not the Court. The non-parole period is fixed at what I consider is the minimum incarceration that justice requires.
39.The sentence is, for the crime of rape, charge 1 you are sentenced to 8 years imprisonment. I fix a minimum non parole period of 5 years.
40.You have now been in custody on remand for a total of 22 days and I declare those days as part of the sentence I have just imposed. I will ensure that that declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have already served 22 days of the sentence I have just imposed.
41.Had you pleaded not guilty and been found guilty I would have imposed a sentence longer than the standard sentence being 11 years 6 months with non-parole period of 8 years and 6 months.
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