Director of Public Prosecutions v Kenelo

[2023] VCC 418

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00584

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINUS KENELO

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2023
DATE OF SENTENCE:	20 March 2023
CASE MAY BE CITED AS:	DPP v Kenelo
MEDIUM NEUTRAL CITATION:	[2023] VCC 418

REASONS FOR SENTENCE

---

Subject:Trial - sentencing

Catchwords:          Rape

Legislation Cited: 

Cases Cited:DPP v Patel [2022] VCC 2214, DPP v Iudice [2020] VCC 316,
DPP v Kim [2022] VCC 1130, DPP v Kavanagh [2020] VCC 651

Sentence:9 years' imprisonment, 5 years and 6 months non-parole period

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Ms M. Isobel	Visatec Legal

HIS HONOUR: 

1Linus Kenelo, on 31 January 2023 a jury found you guilty on Charges 2, 3 and 6 on the indictment.  On 1 February 2023, the same jury found you guilty on Charge 1 on that indictment.  Each of those offences is an offence of rape for which the maximum penalty is imprisonment for 25 years.  Charges 1, 2 and 3 involved digital rape of your victim and Charge 6 involved penile vaginal rape without a condom or any other form of protection. 

2You have no prior convictions.  The prosecution case was that over a period of approximately three weeks from about the middle of July 2019 to 7 August 2019, you provided your victim with work in your cleaning business.  As you well knew, your victim had not then been long in Australia and had become a student.  She was seeking part-time work in order to supplement her income and pay for her studies. 

3During that three-week period, you were in regular contact with her via social media and you employed her from time to time.  There was an occasion during that period when you booked a motel room.  The two of you went to that room ostensibly so that you could discuss matters related to the business.  There was no offending conduct involved on that occasion although it seemed to me that that action on your part in taking her to a motel room for a chat was capable of lulling her into a false sense of security which you exploited on 7 August 2019 when you again invited her to the motel room that you had booked. 

4The exchanges between you from about 15 July 2019 through to 7 August 2019 were familiar and flirtatious.  It was suggested on your behalf during the trial that those exchanges indicated a flirtatious attitude on her part.  I am satisfied beyond reasonable doubt that from very early on in your relationship with the victim you exploited the fact that you were her employer, you exploited the fact that you were 19 and a half years older than her (you being 39 years of age at the time and she being 20), you exploited the fact she had not been in Australia long and you exploited the fact that she was a relatively impoverished student who looked to you not just for wages for her work but as a financial benefactor.  You had supplied her with other money to assist her with her financial difficulties as a student. 

5On 7 August 2019, she asked if she could borrow $240 from you.  You booked a motel room during the course of the afternoon.  You told her a false story about your intention in booking the motel to be close to the airport because you had an early flight to Adelaide the following day and that you were going to be working in Adelaide for your cleaning business.  One of the ostensible reasons for inviting her to the motel was so that you could provide her with keys so that she could carry out cleaning work over the weekend in your absence. 

6That was an entirely false story and it shows premeditation on your part.  You not only lied to her but you lied to your wife about the reasons for being out during the course of the evening.  You lured your victim to the motel room, I am satisfied beyond reasonable doubt, in order to have sexual relations with her whether she consented or not. 

7You were in a position of power and influence over her.  You exploited that.  You were a financial benefactor.  You exploited that.  You exploited the fact that she had not been subjected to any improper conduct on your part when you earlier went to a motel room ostensibly for a chat.

8On 7 August 2019 in the motel room, you set about kissing her, touching her and raping her on the four occasions reflected in Charges 1, 2, 3 and 6.  You used such violence as was necessary to achieve your ends to overcome her resistance.  She did put up resistance and you overcame that with such force as was necessary in order to carry out the rapes.  The rape the subject of Charge 6, as I have indicated, involved penile vaginal intercourse with no condom. 

9You threatened your victim with serious violence.  You threatened to call other people to the motel room if she continued to resist.  You persisted in your sexual attack upon her despite her protests, her cries and her screams, telling her that nobody would hear her.  You did not desist until you had engaged in the penile vaginal rape of her.

10You pleaded not guilty.  You were quite entitled to do that.  You persisted with the false story that you told police about her consenting to all of the sexual acts.  I regard the offending as a serious example of the offences of rape.  I regard the offending as slightly above the mid-range of seriousness despite the fact that there was no serious injury caused to the victim. 

11As your counsel rightly points out, some of the aggravating features of rape, involving serious violence in particular, were absent.  But your position of power and influence over her as a person almost twice her age to whom she must have looked for guidance, employment and friendship, you exploited to a degree where your moral culpability must be regarded as high.

12Your victim made a victim impact statement in which she describes the effects of your assaults upon her and the post-traumatic stress disorder and depression from which she has suffered since.  There is other material from people she consulted about her mental anguish, supporting diagnoses of those conditions, as well as anxiety.  She became suicidal. 

13She finishes the victim impact statement with these words:

'Every day, I try to fight and hope that it would get better.  But the time has come, and it didn't get better, and I still have to convince myself to keep going.  This traumatic event has left a scar in my heart that will never heal.  It makes me lose confidence in being a woman.  This is why I wanted to keep going with court, even though the whole process was draining.  I never wanted someone else to go through what happened to me.  It is worth it to make him accountable, and hopefully that will set an example to other people with such misogynistic thoughts, people who think they have the right or power to own someone else's body.  Women are human beings, not objects.  We have the same rights in this world and should be respected.  Our gender should not stop us from chasing our dreams and living a purposeful life.'

14Turning to matters personal to you, your counsel provided me with a helpful outline of submissions on sentence which is Exhibit 1 on the plea hearing, together with letters from your wife dated 21 September 2022 and another letter which is undated in which your wife describes the effects of the offending and your incarceration on the family unit.  There is no doubt that your absence from the home has been sorely felt and that it has caused a very significant hardship to your family.  It will cause you a good deal of anguish during your period of incarceration.  It will make your incarceration harder for you to bear knowing those facts and the effect your absence from the home as a carer for the children and as a husband will have upon the family unit.

15Your counsel has not put, and I think rightly not put, that those facts amount to the degree of exceptional circumstances that would allow me to take the family hardship into account as a mitigating factor.  I do take into account the effect that it will have on you and your capacity to handle your term of incarceration. 

16In addition, I was provided with a letter from the Central West Medical Centre concerning your wife's emotional state and inability to sleep, along with letters from Pastor Oluwasola, from the President of the Igbo Association of Victoria, from Tommy Akinfire dated 21 September 2022, from Austin Nwauzu dated 21 September 2022.  And I note that Pastor Oluwasola also provided evidence on oath in the course of the trial on your behalf.

17Those letters of reference and your wife's evidence point to a person very different from the person who carried out this offending.  They point to a person with a strong religious belief who was prepared to contribute significantly to the church community, to the Igbo Association of Victoria and its membership, and who is not just capable of, but engages in, good works to support those organisations. 

18You show them and those who have been fortunate enough to benefit from your community-minded efforts in the past a very different face from that which you displayed to your victim on 7 August 2019.  That is relied upon by your counsel in support of his submission that you have good prospects of rehabilitation.  Coupled with the absence of any prior convictions and particularly any convictions for sexual offences of any kind, I accept that you do have at least reasonable prospects of rehabilitation. 

19Other factors which are important in determining an appropriate sentence are that there has been a delay of some four and a half years since the offending.   The prospects of convictions and incarceration have been hanging over your head for that period of time.  And you have spent 48 days in custody during the latter stages of the COVID pandemic in conditions which are more restrictive than would ordinarily apply in the prison system. 

20The sentence that I will be imposing will, at least for the time being, also involve a more restrictive regime.  That is to be taken into account in the overall consideration of an appropriate sentence.  It is unfortunate that it has taken, particularly during the COVID  pandemic, longer than usual for offences of this kind to come to trial.  Four and a half years is a considerable period of time and that needs to be given proper weight in determining an appropriate sentence. 

21Both counsel have given me assistance in endeavouring to identify current sentencing practice which is appropriate for cases that have been dealt with since the introduction of the standard sentencing scheme.  I note that the standard sentence for the offence of rape is imprisonment for 10 years.  That is effectively a guidepost to be considered as an appropriate sentence where the offending conduct is in the middle of the range of seriousness, having regard to the features of the offending conduct rather than to mitigating or other circumstances.

22As I have already indicated, it seems to me that this offending is slightly above the mid-range.  But there are a number of matters that I have indicated will need to be taken into consideration in mitigation of sentence. 

23As your counsel readily concedes, offences of this nature require proper consideration to be given to denunciation, to general deterrence and to the protection of the community.  She also submits that your absence of prior convictions does not suggest that particular significance should be given to individual deterrence. 

24I add that just punishment is also a matter that needs to be given proper weight in the sentencing process. 

25I am also required under the standard sentencing scheme to impose a non-parole period which is at least 60 per cent of the head sentence unless there are exceptional circumstances.  It has not been suggested that there are exceptional circumstances applying in this case and I propose therefore to comply with that requirement. 

26The prosecution supplied me with reference to the case of DPP v Patel [2022] VCC 2214 and to the case of DPP v Iudice [2020] VCC 316. And today, Ms Isobel provided me with copies of the case of DPP v Kim [2022] VCC 1130 and DPP v Kavanagh [2020] VCC 651. Doing the best I can to give proper effect to the various matters that I have outlined, I pay due regard to the cases to which I have been referred as comparators for the purposes of discerning current sentencing practice,

27Though there are some helpful similarities, there are also many differences in the relevant factors involved in those cases compared with this one.  But it has been helpful to use those cases in identifying what seems to me to be an appropriate sentence in this case.        

28Doing the best I can to marry all of those considerations, I sentence you as follows: 

-    on Charge 1, you are convicted and sentenced to imprisonment for seven years; 

-    on Charge 2, you are convicted and sentenced to imprisonment for seven years; 

-    on Charge 3, you are convicted and sentenced to imprisonment for seven years; 

-    on Charge 6, you are convicted and sentenced to imprisonment for eight years.

29The sentence on Charge 6 is the base sentence

30I order that four months of each of the sentences imposed on Charges 1, 2 and 3 be served cumulatively upon one another and upon the sentence of eight years imposed on Charge 6. 

31That makes a total effective sentence of imprisonment of nine years.

32I fix a non-parole period of five years and six months, which is slightly above 60 per cent of the head sentence.

33I declare 48 days' pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively. 

34I sentence you as a serious sexual offender in respect of Charges 3 and 6 and order that that be noted in the records of the court.

35I make the forfeiture order in accordance with the draft in relation to the mobile telephone. 

36I order that you must comply with the reporting obligations under the Sex Offenders Registration Act 2004 for a period of 15 years. The details of that will be supplied to you. I have signed the necessary form which sets out the obligations under the Act with which you must comply, and you will be required to sign the acknowledgement of your receipt of that form.

37Are there any other orders that I need make, counsel?

38MS FALLAR:  No, Your Honour.  Thank you.

39MS ISOBEL:  No, Your Honour.

40HIS HONOUR:  Thank you.

‑ ‑ ‑