Director of Public Prosecutions v Inia

[2016] VCC 271

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00318

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENGI HENGI INIA

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 March 2016
CASE MAY BE CITED AS:	DPP v Inia
MEDIUM NEUTRAL CITATION:	[2016] VCC 271

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Ms Todd

HIS HONOUR:

1Hengi Hengi Inia, you were found guilty by a jury on Charge 3 of rape of Suzanne Kidd[1] and on Charge 4 of rape of Sarah Flower[2] on 10 August 2014.  Each of those offences occurred at the home of Sarah Flower, during the early hours of the morning of that day.  You have no prior convictions.

[1] Suzanne Kidd is a pseudonym.

[2] Sarah Flower is a pseudonym.

2The evidence in relation to Charge 3 was to the effect that following a period of consensual sexual activity between yourself and your victim, you engaged in penile-vaginal penetration of her at a time when she was not consenting and when you were either aware that she was not consenting or might not be consenting or did not care as to whether she was or was not consenting.

3During the course of that incident, her evidence was to the effect that you had your hands around her throat with your thumbs pressing into her windpipe, causing her considerable fear.  I am satisfied beyond reasonable doubt that that occurred.  I am not satisfied beyond reasonable doubt that you intended thereby to strangle her or to cause her any loss of consciousness or any permanent injury.  But you performed that act in circumstances where it must have been extremely frightening to your victim and with sufficient force to cause some bruising to the neck and likely some scratch injuries at the same time, presumably with your thumb nails.  I do not need to make that finding beyond reasonable doubt.  It is sufficient that I find that you were engaged in that act with sufficient force to cause her to be in fear.

4You then took the opportunity whilst Suzanne Kidd was either asleep or unconscious to enter the room of your second victim, Sarah Flower.  You took the opportunity of her being alone and apparently asleep to remove her underwear and her sanitary pad and to sexually penetrate her vagina with your penis.  She awoke and told you to get off.  You persisted and eventually she pushed you off.

5In both cases, the penile-vaginal penetration was without a condom although there had been consensual penile-vaginal penetration without a condom with your first victim.  The same cannot be said of the offence the subject to Charge 4 on the indictment with your second victim.  That must rate as an aggravating circumstance in relation to Charge 4.

6Offences of rape are always serious offences and although there was no pre-planning, you took the opportunity to rape two separate victims, in circumstances which have undoubtedly caused them significant psychological consequences as evidenced by the victim impact statements which are Exhibit A and B respectively on the plea hearing.

7The act of placing your hands around the throat of your first victim at the time that you were engaging in rape, was a feature of aggravation, I find.  In relation to Charge 4, the unprotected penile penetration of the vagina, that is without a condom, is also an aggravating feature of that offence and also you took advantage of the fact that she was asleep to carry out the crime.

8You did not plead guilty to these offences and have been found guilty by a jury.  You were acquitted of two other charges in relation to the first of your victims.

9It cannot be said that you should be entitled to any discount or pleas of guilty of course, but at the same time, I acknowledge as your counsel has pointed out to me, that the fact that you pleaded guilty is no basis for increasing the sentence that would otherwise be just in respect to these offences.

10It cannot be said that you have shown any remorse for your offending conduct.  The fact that you were intoxicated is not relied upon as a mitigating factor, simply by way of context and to provide some explanation for why you should behave in this out of apparently character manner.  Intoxication can sometimes be a mitigating factor.  It is not relied upon as such in this case.

11Turning to matters personal to you.  You are 31 years of age, 30 at the time of your offending conduct.  You were born in Tonga and migrated to New Zealand where you spent most of your young life, coming to Australia after the death of a brother and subsequent acquittals of those who were responsible for his death.  Although your schooling was affected by that incident, you came to Australia to make a life for yourself.

12Since you have been in Australia, you have worked consistently and it would seem hard and have made a life yourself, marrying in 2010 and having a son who is now four years of age.  He will be five in August of this year.

13These offences were committed at the time when you were still living with your wife and son.  I am told that in recent times you have moved out and that the marriage is in difficulty, perhaps not surprisingly and that the fact that your marriage is in difficulty, would in itself, weigh heavily upon you during your period of incarceration.

14Perhaps more significantly, your counsel has pointed out to me that it would seem that it is inevitable that you will be deported to New Zealand upon the completion of your non-parole period.  That matter will cause an increased burden of serving your sentence and will act as a significant extra punishment, in that you will lose your opportunity remaining in Australia, lose your opportunity of repairing your marriage within Australia and lose your opportunity of being a father within in Australia.  Of course, what arrangements you might make in the future with your wife and for access to your son or repair of your marriage, by her moving to New Zealand perhaps, is too uncertain for me to determine.

15However there is no doubt all of that will serve as a significant extra punishment to you.  I take the fact that you have to face inevitable deportation or seem almost inevitable deportation into account and reducing the sentence that I would otherwise find it necessary to pass upon you in this case.

16The task that I have involves determining punishment which appropriately denounces your conduct, punishes you adequately for your offending conduct, deters you from further conduct of this kind and deters others from committing the offence of rape or similar offences.

17I have to balance that against the need for promoting your rehabilitation as far as I reasonably can.  I regard your prospects of rehabilitation as good.  You have no prior convictions.  You have got to the age of 30 without any prior convictions, apparently living a blameless and honest and productive life and I take that into account in your favour.

18I do not regard you as being a threat to the general public. I am not satisfied beyond reasonable doubt that the conditions precedent for me to order that you be subject to the reporting requirements of the Sex Offenders Registration Act and I do not propose to make such an order.

19I am required to take into account current sentencing practice and to that end, I have been supplied with the case of Hasan which came before the Court of Appeal on 17 December 2010 and is cited as Hasan [2010] VSCA 352.

20There was attached to that a table, Appendix A of cases of broadly similar kind to this one which assists me in determining current sentencing practice.  The case was decided more than five years ago now and I have to also take into account cases which have occurred since, although I do not perceive there to be any movement in terms of current sentencing practice so far as offences of this kind are concerned.

21I do sentence you as a person of hitherto or previous good character and I take into account the various matters that I have outlined.

22It is necessary of course to impose separate sentences on each charge and to determine the degree to which there should be cumulation as between the sentences imposed on each.  I am required to take into account the totality principle in determining the overall sentence that is just in the circumstances and does not impose a crushing sentence upon you.

23Doing the best I can to balance all of those sentencing considerations, I am now ready to impose sentence upon you.  Will you please stand.

24On Charge 3 of rape, I convict you and sentence you to imprisonment for a period of four years and six months.

25On Charge 4 of rape, I convict you and sentence you to imprisonment for a period of four years and six months.

26I order that 12 months of the sentence imposed on Charge 4 be served cumulatively upon the sentence of four years and six months on Charge 3, making a total effective sentence of five years and six months imprisonment.

27I order that you serve a period of three years and six months before you become eligible for parole.

28I make the order for disposal of property in the terms of the draft with which I have been provided.

29Are there any other orders I need make counsel?

30MR DOYLE:  Pre-sentence detention.

31HIS HONOUR:  Yes.  I declare five days of pre-sentence detention, not including today, as time to be reckoned as served on sentence that I have imposed upon you and to be deducted administratively and I order that that fact be noted in the records of the court.

32MS TOOD:  As the Court pleases.

33HIS HONOUR:  Yes, thank you.

‑ ‑ ‑