Director of Public Prosecutions v Jalloh
[2022] VCC 523
•13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00545
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDUL JALLOH |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-4, 7-11 and 14 February 2022 (Trial) | |
DATE OF SENTENCE: | 13 April 2022 | |
CASE MAY BE CITED AS: | DPP v Jalloh | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 523 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction
1Abdul Jalloh, you now fall to be sentenced for an offence of rape that you committed on 26 August 2017. The jury at your trial found you guilty of that offence on 14 February 2022. The maximum penalty for rape is 25 years’ imprisonment.
Circumstances of the offending
2The circumstances of your offending were fully ventilated at trial and may be briefly summarised as follows.
3At the time of the offending, you were 35 years of age while the complainant, Leah Coop[1], was 32. You are now 39 and due to turn 40 next month.
[1] To ensure that there is no possibility of identification of the victim of this sexual offence, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of the complainant’s name.
4Ms Coop was born in Canada and travelled to Australia in mid-2015. She met you in the first half of 2017, through mutual friends. You then added her to a group on Facebook to whom you sent flyers for the Latin dance nights that you organised at various night clubs, including Club 23 at Crown Casino.
5She attended one of those events at Club 23 on the evening of Friday 25 August 2017. You were hosting that night and spent some time with her at various points in the evening. You also provided her with a drinks card and ensured that she had access to the VIP area.
6When the night was winding down at about 3 am, the complainant called a number of friends to see if any of them were interested in having a drink elsewhere. When those attempts failed, you and her spent some time walking along the Yarra River talking before catching a taxi back to her Southbank apartment. It is unclear to me whose idea that was, but I am satisfied that the complainant had nothing more in mind than simply having a drink with a friend. In her evidence at trial, the complainant told the jury that she had never harboured any romantic interest in you and that she simply regarded you as a friend and nothing more.
7Once back at the apartment, you offered to give her a shoulder massage while seated on a couch in the lounge room. She accepted. After you had been doing that for some time, you suggested that it would be more comfortable in the bedroom. Again, the complainant acquiesced in what you were suggesting.
8It is clear from the evidence, that each of you had consumed alcohol in the hours leading up to this point, although the complainant had drunk more than you. She described herself as drunk and on that account as 'not thinking' when she accepted each of your suggestions. Whilst the evidence would suggest that the complainant had a significant amount of alcohol in her system by this time, the first police officers who saw her not long afterwards, as well as the doctor who examined her at the hospital, did not form the impression that she was alcohol affected. Whatever be the reason for that, it means that I am unable to find that you were aware that the complainant had that much alcohol in her system as opposed to simply being affected by alcohol.
9Once in the bedroom, you commenced to massage the complainant’s shoulders while she lay on her stomach on the bed. At one point, you began to move your hands down her body, to her sides and bottom. The complainant described those actions as 'getting handsy'. In response, she immediately said, 'No, that’s not happening. This isn’t happening because you are married'. You then offered to remove your wedding band. The complainant said that things happened very quickly after that.
(Short adjournment.)
10The complainant said that things happened very quickly after that.
11On her account, which the jury obviously accepted, you then pushed her onto her side in a spooning type position. She again responding by telling you, 'This is not happening'. You then tried to remove her shorts. At that time she noticed that you were naked. You then pushed her onto her back, to which she verbally responded by saying, 'No, please stop'. You ignored those entreaties and instead, got on top of her and inserted your penis into her vagina as she was continuing to say, 'No, please stop'. After penetrating her, you thrust your penis in and out of her vagina until you ejaculated. During that time, the complainant was continuing to say 'No'.
12In the immediate aftermath of this event, the complainant felt petrified, scared and frozen. Ultimately, she told you that you were being filmed because there were cameras in the room. This was not in fact the case but was claimed by her with a view to getting you to leave the apartment. It worked. You made a hasty retreat and while en route home in a taxi, deleted her as a Facebook contact.
13After you left, the complainant removed her clothes and sat on the floor crying. She did not know what to do next. Within what must have been a relatively short time, she made a series of complaints to friends and to police. The first person she called was a male friend in Canada. Then, a short time later, she called a Triple 0 operator. Police then promptly attended her apartment. After taking a history of what had occurred, they arranged for the complainant to be medically examined.
Victim impact
14The complainant’s victim impact statement was affirmed on 23 March this year and read by her at the plea hearing.[2] The admissible parts of that document make clear the adverse impacts that your offending has caused her. In that statement, she describes her life as having been forever changed. It has impacted her relationships. She is now extremely fearful of males and has trouble sleeping. She is anxious and suffers from panic attacks. She has been required to engage in extensive psychological counselling to try and better deal with the aftermath of what she described in her evidence as 'a traumatic event'. She blames herself for having trusted you in the first place and for not keeping herself safe and seeing the signs earlier.
Pre-sentence detention
[2] Exhibit B on the plea.
15You were interviewed by the police about this matter on 5 December 2017. You were later charged. You remained on bail until the date on which the jury returned its verdict at the trial. At that time, you were remanded in custody pending plea and sentence. Accordingly, you have now spent 58 days by way of pre-sentence detention for this matter, not including today’s date. That period will be formally declared shortly.
No prior or subsequent criminal record
16Prior to the date of this offending, you had never been in any trouble with the police, either in your country of birth or while here in Australia. Since committing this offence, you have not been in any further trouble with the law. Accordingly, as someone who is just shy of 40 years of age, you now fall to be sentenced as a first time offender.
17The numerous testimonials that have been tendered on your behalf, consistently describe you as a devoted father and as someone who goes out of their way to assist others in need of help. The various authors were shocked to hear of your conviction for this offence and consider the behaviour that underpins it to be very much out of character.
Personal circumstances
18I turn now to briefly outline your personal circumstances, Mr Jalloh.
19You were born in Russia to a Russian mother and a Sierra Leonean father. After your father left your mother when you were still very young, you were raised in Sierra Leone by your father and an aunt. Your return to that country coincided with the political turmoil that was unfolding in that part of West Africa. The conflicts that were occurring within that country, as well as with neighbouring Liberia, meant that your life was a very unsettled one and your education was interrupted and limited.
20After leaving school, you undertook some work in the diamond trade.
21In 2009, aged 27, you travelled to Australia where, in 2016, you became an Australian citizen. Most of your family continues to reside in Sierra Leone. Your mother lives in Russia.
22You met your wife, who is an Australian citizen, in Sierra Leone. You have been married for 13 years and have two children, a son aged 12 and a daughter aged seven.
23Once in Australia, you completed a TAFE course and then worked consistently as a diamond setter for jewellers. Prior to the COVID-19 pandemic, you were also running a business promoting dance nights at a variety of night club venues. That business no longer exists.
24By means of a two hour video link conference, you were interviewed and assessed by the forensic psychologist, Gina Cidoni, on 21 March this year. By that time, you had been in custody for approximately five weeks. I have carefully read and had regard to her report of the same date.[3]
[3] Exhibit 2.
25Consistent with your plea of not guilty, you told Ms Cidoni that you were innocent of this offence of rape. You admitted to being attracted to the complainant on the night and claimed to have believed that she was receptive to your advances.
26Ms Cidoni describes your personal history in some detail. Significantly, you were exposed to the civil war in Sierra Leone, an experience you describe as 'terrifying'. At one point, you and your father were kidnapped and concern for your father’s safety was a constant theme during that time. You were also racially attacked while in Russia in 2018. Since that time, you have felt very paranoid and hypervigilant. To date, you have received no professional psychological or psychiatric assistance to deal with those unfortunate experiences.
27In Ms Cidoni’s opinion, you presented with symptoms indicative of trauma exposure and maladjustment. She diagnosed you as suffering from Post‑Traumatic Stress Disorder, Persistent Depressive Disorder and Generalised Anxiety Disorder.
28You told her that you have engaged in some binge drinking while at social events and have used cocaine in the same way.
29Ms Cidoni noted a minimisation of sex offences and an overall risk of recidivism as low to medium without any formal intervention.
30In her opinion, you would benefit from psychological therapy to address historical trauma, distress tolerance and coping styles. She believes that your mental health issues would be likely be exacerbated by a period of imprisonment. As she also notes, untreated PTSD produces overwhelming challenges that would weigh more heavily upon you than a person without your conditions. The risk of incarceration, as she sees it, is that it will place you at increased risk of additional emotional deterioration in light of your low coping resources and reduced access to psychological services, thereby creating a substantially greater than ordinary burden.
31I accept all of those observations and opinions.
32The numerous letters in support that were tendered on the plea, uniformly speak of someone who is very hard working and strongly committed to his family. From those accounts, it would seem that you were quite creative and industrious when it came to making a life here in Australia and providing for your family.[4] Again, and as I have already noted, this offending seems to have been a very serious but aberrant misjudgement on your part.
Matters in mitigation
[4] Tendered as a bundle (Exhibit 3).
33Before I outline the matters in mitigation upon which your counsel was able to call in aid on your behalf, it must be noted that a plea of guilty was not one of them. As such, you are not entitled to any discount for a plea of guilty or remorse in respect of this offending. That does not involve punishing you for standing trial in respect of this charge but rather merely observing and noting the absence of those two otherwise significant matters in mitigation in your case.
34It was common ground at the plea hearing that this case has been the subject of an inordinate delay; some four years and seven months have elapsed between the date of offending and the date on which the plea hearing took place. None of that delay has been attributable to you in any way. In the intervening years, you have remained offence free. Furthermore, you have had the spectre of a trial and a potential conviction and sentencing hanging over your head for a considerable period with all of the angst and uncertainty that could be expected to accompany such a delay. I therefore consider it appropriate to take that delay into account in your favour when determining the appropriate sentence to impose in this case.
35Also relevant to the sentence to be imposed, is the very onerous nature of any time you spend in custody, whether on remand or while serving a sentence. In part, that is because of the matters referred to by Ms Cidoni in her report. I accept that you have already found and will continue to find, the experience of custody more onerous than many other prisoners. You have had no previous exposure to the criminal justice system and this is your very first time in a prison. Understandably, for that and other reasons, you live in a state of fear. I accept that you will also worry about how your family is coping without you.
36There is also the extra layer of difficulty and hardship created by the COVID-19 restrictions which Corrections have had to implement and, to varying degrees maintain, during the currency of the pandemic. On first entering the custodial system, you were required to undergo a period of isolation. Since then, and for at least the medium term, your ability to move within the prison system, receive personal visits and undertake employment, courses and further education will be compromised. Given the emergence of the more contagious sub-variant of the Omicron strain, and the fact that prisons in both NSW and Victoria have been battling to contain infections, I consider it reasonable to assume that prisoners like yourself will have a renewed and heightened concern about contracting the virus in a custodial environment where they have no control over their own movements.
37In light of the opinions expressed by Ms Cidoni in her report, I accept your counsel’s submission, as does the prosecution, that limbs 5 and 6 of Verdins case are engaged.
38You have what appears to be a very solid and commendable work history and a good work ethic.
39You have continuing support from your immediate and extended family, to whom you are close and committed.
40You have no prior convictions or findings of guilt, nor have you been in any further trouble with the law since you committed the current offence back in 2017.
41Many of your personal characteristics to which I have already referred are confirmed by the authors of the various written references tendered on the plea.[5]
[5] Tendered as a bundle (Exhibit 3).
42You are a man of relatively mature years who has a number of protective factors. I accept that you are prepared to try and put your time in custody to good use and to try and leave prison a better man. But, I also note that this offending remains unexplained by you and is yet to be dealt with through an extended period of targeted psychological treatment. Until that occurs, you must be considered as at least some risk of re-offending, particularly if you were to abuse alcohol and/or use drugs after you are released. In the end, and after having done my best to gauge your prospects of rehabilitation on the available material, I have concluded that they are very good.
Gravity of the offending.
43Your background and personal circumstances are not the only matters to which this court must have regard, Mr Jalloh.
44Another important consideration is the objective gravity of your offending.
45Any offence of rape is an intrinsically serious offence. So much is clear from the very high maximum penalty prescribed by Parliament, namely 25 years’ imprisonment.
46However, I also note that while this instance of rape is a category 1 offence, it is not a standard sentence offence for the purposes of the application of the standard sentence regime.[6]
[6] This is due to the date of the offending. This rape was committed was 26 August 2017. Rape is a category 1 offence if it is committed on or after 20 March 2017 whereas rape is only a standard sentence offence if it was committed on or after 1 February 2018.
47I consider the offence that you committed against this complainant to be a relatively serious example of its type and one that is to be properly assessed as falling in the mid-range of seriousness on the spectrum of seriousness for this type of offence. The fact that it was relatively opportunistic in nature does not change that fact.
48I am prepared to find that you did not attend the complainant’s apartment with the express aim of raping her. The evidence at trial rather suggests that you were hoping to engage in mutually acceptable intimacy with her. No doubt that hope still existed while the respective massages were occurring. But, it must have become crystal clear to you when you attempted to progress things beyond a mere shoulder massage, that the complainant was not interested in any such intimacy and certainly not in having sexual intercourse with you. She explicitly told you that and could not have made her position any clearer.
49The fact that the complainant was prepared to allow you to give her a shoulder massage provided no justification for you progressing things in the way that you did. Having had your hopes for sex with her dashed by the complainant’s firm indication that your desire was not reciprocated, you chose to penetrate her in the manner that you did while clearly cognisant of the fact that she was not consenting to such an act. No other inference is reasonably open in my view when one has regard to the path of reasoning that the jury must have taken to convict you. The respective accounts that the complainant and you gave in evidence were very different and diametrically opposed. In order to convict you, the jury must have accepted the essential aspects of the complainant’s account and rejected your account to the effect that the complainant willingly engaged in, and to some degree initiated, various acts of foreplay in the leadup to engaging in consensual sexual intercourse with you.
50It seems clear to me that you took advantage of the complainant’s friendship and vulnerability for no better reason than your own sexual gratification. It was a deeply upsetting experience for her to have been violated in the manner that she was in the supposed safety of her apartment. The sense of betrayal and loss of trust that she has experienced as a result of what you did has been significant.
51The fact that this act of rape was committed in circumstances where you penetrated the complainant’s vagina with your penis to the point of ejaculation while not wearing a condom is an aggravating factor which elevates its level of seriousness.
52Your later lies about what occurred, including while giving evidence at the trial, leaves no room for any finding of remorse and is a relevant consideration in any assessment of your prosects of rehabilitation.
No comparable cases
53I note that neither party referred the court to any cases that are said to be comparable to the present.
Sentencing Statistics
54In a very general way, I have had regard to the relevant sentencing statistics for the offence of rape published by the Sentencing Advisory Council in August 2021. That publication deals with sentences imposed in the higher courts for the offence of rape over the period from 2015 to 16, to 2019 to 20. In that period, 214 people were sentenced for a principal offence of rape. The length of imprisonment for the 189 people who received a non-aggregate term ranged from one month to 12 years, while the median length of imprisonment was five years and six months.[7]
[7] Sentencing Advisory Council, 'Rape, Sentencing trends in the higher courts of Victoria, 2015-16 to 2019-20', Sentencing Snapshot No. 255.
55Of course such bare statistics lack relevant detail concerning the circumstances of each offender and of the offences. As has been stated repeatedly by the Court of Appeal, they can only ever be of limited assistance.
Individualised justice
56In the end, as in any sentencing exercise, this case calls for a process of individualised justice in which the relevant features of the offending and offender are what guide the sentencer.
Relevant sentencing principles
57For an offence of this kind, the sentencing principles of general deterrence, denunciation and just punishment assume considerable significance.
58Specific deterrence and protection of the community are also of some relevance given the nature and seriousness of this offending, your continual denials of wrongdoing and the fact that the underlying cause or causes of that offending are yet to be addressed through any targeted period of professional treatment and counselling.
59Your age and prospects of rehabilitation are further considerations which must be given their due regard. As I have already noted, you are a man who is now on the cusp of turning 40 and who possesses what I regard to be very good prospects of rehabilitation despite your reluctance to take personal responsibility for this offending.
Sentencing submissions
60In his written and oral submissions, your counsel, Mr Pearson, properly conceded that nothing short of a custodial sentence involving a head sentence with a minimum term was warranted for this offending. That was an entirely reasonable concession on his part. However, he did urge the court to give full weight to the various matters in mitigation and, in particular, to your sound prospects of rehabilitation and the sentencing principle of parsimony when determining that sentence.
61For his part, Mr Devlin, counsel who appeared on behalf of the Director, fairly acknowledged a number of the matters in mitigation; for example, the applicability of limbs 5 and 6 of Verdins case, and the relevance and significance of delay and spending time in custody during the COVID-19 pandemic.
62In the course of submitting that a custodial sentence was warranted, prosecuting counsel highlighted the serious nature of this offence, in part by reference to the prescribed maximum. He also pointed out the corresponding need to emphasise such sentencing considerations as general deterrence, denunciation and just punishment in the sentencing process.
Analysis
63In regards to sentence, I have ultimately concluded that the nature and gravity of this offending calls for a substantial custodial sentence in the form of a head sentence with a non-parole period. Any lesser disposition would, in my view, fail to accord sufficient recognition and weight to a number of important sentencing principles and would not represent a just punishment for this offending.
Sentence
64Accordingly, after having considered, weighed and balanced all of the relevant sentencing considerations as best I can, I have decided to sentence Mr Jalloh as follows.
65On Charge 1, rape, he is convicted and sentenced to a term of six years’ imprisonment. That term will, in effect, represent the head sentence.
66In considering the length of the non-parole period, I have given some additional weight to the matters in mitigation and to the likely deterrent effect that the serving of a custodial sentence will likely have on Mr Jalloh. The fact that he is nearly 40 and has no other criminal history provides some justification for a somewhat disparate minimum term as compared to the head sentence. But, there is a limit to how far that can be taken as the non-parole period should not be fixed so low as to amount to an unjust sentence and effectively undermine the very sentencing principles that it is designed to give appropriate effect to.
67In the end, I have determined that a non-parole period of three years and nine months should be fixed.
Pre-sentence detention
68Pursuant to s18 of the Sentencing Act, I declare that Mr Jalloh has served a total of 58 days’ pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today. I order that such a period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Other matters
69HIS HONOUR: Starting with you, Mr Devlin, are there any other matters you wish to raise at this stage in relation to either the sentence or my sentencing reasons?
70MR DEVLIN: No, Your Honour.
71HIS HONOUR: Mr Pearson?
72MR PEARSON: No, Your Honour. Thank you very much.
73HIS HONOUR: All right. Mr Pearson, I'll allow an opportunity for you and your learned junior to speak to Mr Jalloh via the video link immediately after I leave the Bench. Thank you, counsel.
74MR PEARSON: Thank you, Your Honour. Would Your Honour - look I will raise it with Your Honour's tipstaff, but perhaps if Mr Jalloh's wife could also make her way into that conference with Mr Jalloh?
75HIS HONOUR: Sorry, make her way to where?
76MR PEARSON: If she could come with my learned junior and I so that we could just have a quick word with Mr Jalloh. It might be, to some extent, a comfort to Mr Jalloh to be able to speak to his wife also, Your Honour.
77HIS HONOUR: I'm not sure how that's going to take place where you and your junior and his wife are all together. You're meaning just via the video link?
78MR PEARSON: Yes. Yes. Yes.
79HIS HONOUR: All right. All right. Mr Pearson, I'll allow that, but please understand it's to be for a very short period.
80MR PEARSON: Of course.
81HIS HONOUR: It's not for the purposes of a personal prison visit through the back door.
82MR PEARSON: No. No.
83HIS HONOUR: But I will allow some brief communication. All right.
84MR PEARSON: Thank you very much, Your Honour.
85HIS HONOUR: I'll leave the Bench. Thank you.
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