Director of Public Prosecutions v Kuir

[2024] VCC 1334

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00051

DIRECTOR OF PUBLIC PROSECUTIONS

v

AGUER KUIR

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2024
DATE OF SENTENCE:	28 August 2024
CASE MAY BE CITED AS:	DPP v Kuir
MEDIUM NEUTRAL CITATION:	[2024] VCC 1334

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Rape – Sexual assault – Rolled-up charges – Sexual offending by Bar owner against extremely intoxicated and incapacitated female patron – Offending captured by CCTV cameras – Multiple aggravating factors – Significant and ongoing victim impact – Rape offence a Category 1 offence and a standard sentence offence – Limited prior criminal history – Very late plea in face of strong prosecution case – Limited remorse.

Legislation Cited:      Crimes Act 1958, ss 38, 40; Sentencing Act 1991, ss 3, 5(2G), 5(2GA), 5A, 6AAA, 9(1A), 11A, 18.

Cases Cited:Brown v The Queen (2019) 59 VR 462; Shau v The Queen [2020] VSCA 252.

Sentence:                  Total effective sentence of 11 years' imprisonment with a non-parole period of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill	Office of Public Prosecutions
For the Accused	Mr A. Chernok	Stary Norton Halphen

HIS HONOUR:

Introduction

1Mr Kuir, you have pleaded guilty on indictment[1] to one charge of sexual assault (a rolled-up charge)[2] and one charge of rape (also a rolled-up charge).[3] The maximum penalty for those offences are 10 years and 25 years' imprisonment, respectively.

[1] N11882371.1.

[2] Charge 1 pursuant to s 40(1) of the Crimes Act 1958 (Vic).

[3] Charge 2 pursuant to s 38(1) of the Crimes Act 1958 (Vic).

2The offence of rape is a standard sentence offence for which the standard sentence is 10 years' imprisonment.

3You committed those offences in the course of a single criminal episode in the early hours of 30 July 2022. In essence, you preyed on a severely incapacitated young female patron who you had earlier taken to a makeshift upstairs bedroom of the Footscray Bar that you owned.

4At the relevant time, you were aged 34 and the complainant was 20.[4] You are now 36 whilst she is 22.

[4] The accused was born in March 1988 while the complainant was born in late 2001.

Circumstances of the offending

5The full circumstances of your offending are set out in the typed Prosecution Opening,[5] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you fall to be sentenced was also discussed during the plea hearing. I have had regard to that opening and to those discussions where relevant when determining the appropriate sentence.

[5] Dated 5 July 2024 (exhibit A).

6For present purposes, your offending can be summarised as follows.

7At about 10:00 pm on 29 July 2022, the complainant, Ella Ahmadi,[6] her boyfriend Osman Mustafa[7] and their two male friends, Mohammed Bashir[8] and Nyok Akol[9] attended a bar in Carlton. Whilst there, the complainant consumed several alcoholic drinks, including around five shots.

[6] To ensure that there is no possibility of identification of this victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this victim’s name.

[7] To ensure that there is no possibility of identification of the victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this witness’s name.

[8] To ensure that there is no possibility of identification of the victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this witness’s name.

[9] To ensure that there is no possibility of identification of the victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this witness’s name.

8The group left that bar at approximately 2:30 am the next morning and travelled to your Bar in Footscray.

9Upon arriving there, Mr Akol exited the vehicle, as did the complainant who told her boyfriend that she needed to use the bathroom. The complainant then entered your Bar in search of a bathroom.

10A short time later, you and Mr Akol had a brief disagreement which resulted in Mr Akol being pushed out of the premises. He then returned to the vehicle and told the other two men that 'some guys at the Bar wanted to fight'. All three men then went to the front of the Bar but were refused entry.

11When Mr Mustafa asked the men at the door where the complainant was, he was told that she was not at the premises. That was not correct as the complainant was in fact still inside the Bar. As discussed on the plea, there is an insufficient evidentiary basis to conclude that you were one of those men at the door.

12After being told that the complainant was not there, her boyfriend and his two friends then left.

13The complainant recalls consuming alcohol at the Bar, but has no other memory or recollection of the events that transpired there.

14CCTV footage obtained from the premises clearly captured the circumstances of her attendance at that Bar and her movements while there.[10]

[10] The relevant portions of the CCTV footage were tendered on the plea (exhibit B).

15In summary, the footage revealed the following events and timeline.

16At 2:58 am, the complainant entered the venue and proceeded to consume an alcoholic drink handed to her by another patron. A few minutes later, she was observed stumbling on her feet in the hallway and had slid down to sit on the floor. A male patron then assisted her up off the floor.

17At approximately 3:18 am, you then took her out to the front of the premises where she appeared very distressed and emotional. She was crying. At this time, she attempted to call her boyfriend but he did not answer so she left him a voicemail message. The complainant was stumbling and unable to walk in a straight line. She then took her shoes off.

18At 3:33 am, while attempting to put her shoes back on, the complainant fell heavily to the ground while appearing severely intoxicated. She then managed to get to her feet, but did so slowly.

19At 3:37 am, a male witness helped the complainant into the front entrance of the Bar. You and that male then assisted her to walk, after which you ushered and physically moved her upstairs to a private room. At this point, she appeared groggy and was unable to stand up on her own.

20Once upstairs, you positioned her on a couch in a lying position on her back and put a blanket over her. You then briefly left the room. During your absence, she fell off the couch onto the floor and then did not move.

21At 3:45 am, you returned to the room and picked the complainant up with both of your arms. After placing her torso on the couch, you then lifted her bottom half and eventually re-positioned her so that she was lying on her back. At this time, she was completely limp and non-responsive.

22You then sat on the couch next to her head and took a phone call.

23A few minutes later, you then slid your left hand down the complainant's top and groped and fondled her left breast. After doing that, you then slid your left hand down the front of the complainant's pants and touched her vagina with your fingers. While you were touching her in those areas, the complainant did not move and appeared non-responsive and unconscious. Your conduct in touching the complainant's breast and vagina forms the basis for the offence of sexual assault alleged in Charge 1. It is, as I have already noted, a rolled-up charge which encompasses both acts of touching.

24After touching the complainant, you then climbed on top of her and pulled her pants and underwear down to her ankles. After pulling your own pants and underwear down, you then penetrated the complainant's vagina with your penis until you ejaculated inside her vagina. As the complainant was still limp and unresponsive, you had to move her legs to assist with the penetration. After ejaculating, you obtained a tissue which you then inserted into her vagina in an attempt to wipe her vagina clean. At this point, the complainant was still entirely unresponsive and did not move at all. After using the tissue in that way, you put it into one of your pant pockets. Your actions in penetrating the complainant with your penis and then a tissue forms the basis for the offence of rape alleged in Charge 2. Again, and as I have previously noted, this is a rolled-up charge which encompasses both acts of penetration.

25In total, your offending conduct lasted for just under five minutes.

26Afterwards, you attempted to redress the complainant. In order to do so, you had to move her limbs as she was still limp and unresponsive. You then covered her with a blanket and left the room.

27Once downstairs, you placed the used tissue in a fridge.

28The complainant continued to lay unresponsive on the couch for the next two to three hours. During this period, several people, including yourself, came into the room.

29Later, at 5:43 am, you appeared to check the complainant's pulse. An unknown male also appeared to do the same. She remained limp and unresponsive.

30At 6:43 am, an unknown female managed to rouse the complainant and comfort her as she appeared to drift in and out of consciousness.

31Eventually, at 7:01 am, that female and an unknown male assisted the complainant off the couch and down the stairs. The complainant appeared unsteady on her feet and disorientated.

32At 7:43 am, the complainant was put into a Silver Dodge SUV vehicle which was then driven away from the premises.

33The complainant recalls waking up in the rear seat of that vehicle and becoming aware that there were two African males sitting in the front seats. One of those males was you, Mr Kuir. The vehicle was parked outside her boyfriend's home in Deer Park, but he was not at home at that time.

34The complainant then asked to use your mobile phone as the battery on hers was flat, and you allowed her to do so. She called her boyfriend 11 times, but he did not answer his phone. The complainant then called her sister and asked her to book an Uber to take her to an address in Melton where she believed her boyfriend would be. According to the sister, the complainant sounded distressed during that phone call.

35The complainant was then picked up by the Uber arranged by her sister and taken to an address in Melton where she discovered her boyfriend asleep on a couch. When he noticed that her pants were inside out, she went to the bathroom and soon realised that her underwear and one of her socks were missing. As she had no recollection of how this had occurred, she became increasingly concerned and confused.

36At 11:30 am, the complainant attended at a local medical clinic where she was advised to go to a hospital. Later that evening, at 8:30 pm, she attended Monash Hospital where she spoke to a worker from the Sexual Abuse Crisis Line. Police were then notified and arranged for the complainant to be medically examined.

37On the following day, 31 July, police commenced to investigate the matter. The complainant's clothing was obtained and a forensic medical evidence kit from the hospital was completed.

38Analysis of swabs taken during the forensic examination detected the presence of spermatozoa. DNA results from one of the swabs revealed that you were 100 billion times more likely than another person to be the source of that semen.

39On 5 August 2022, detectives attended at your Bar and spoke with you. On their request, you provided the CCTV footage from the internal and external cameras at the premises. When that footage was later reviewed by police, it revealed the events and timeline that I have earlier described.

40On 30 August 2022, police executed a search warrant at your Bar where they located the tissue that you had used to clean the complainant's vagina.

Arrest and interview

41On that same day, you were arrested and interviewed. During that interview, you told the police the following, inter alia:

·You and the complainant had a prior agreement and the complainant had asked you whether you wanted her to suck your dick;

·The two of you walked up the stairs together and once upstairs, engaged in kissing and 'touching each other';

·You sexually penetrated the complainant's vagina with your penis. The complainant was conscious and awake at the time and placed her arm around your back; and

·After engaging in sexual intercourse, the complainant asked you for a tissue to clean herself up. You then went and got a tissue and gave it to her and she used it to wipe her own vagina clean. After she gave you the used tissue, you flushed it down an upstairs toilet.

Pre-sentence detention

42Following the interview, you were charged and remanded in custody where you have remained ever since. The total period of pre-sentence detention for this matter is therefore 729 days, up to but not including today's date. A formal declaration to that effect will be made shortly.

Guilty plea

43I note that this matter resolved on the first day of trial, during pre-trial proceedings. A number of prosecution witnesses were cross-examined[11] with a view to establishing a basis for seeking the exclusion of the CCTV footage.[12] The matter resolved very shortly after that cross-examination took place.[13]

[11] After leave was granted under s 198B of the Criminal Procedure Act 2009 (Vic).

[12] The exclusion was being sought pursuant to s 138 of the Evidence Act 2008 (Vic).

[13] Two of the proposed three witnesses were cross-examined on 13 May 2024. The matter then resolved overnight without the need to cross-examine the remaining witness who was due to be cross-examined on 14 May.

44On any view, this represents a very late plea in the face of a very strong prosecution case.

45Despite attempts by a Judicial Registrar during the course of a case assessment hearing to point out the strength of the prosecution case based on what the CCTV footage showed,[14] and despite attempts by your lawyers to describe for you what it depicted, you maintained your resolve to go to trial right up until the pre-trial proceedings were underway.[15]

[14] The case assessment hearing was conducted by JR Phillips on 9 March 2023.

[15] At the plea hearing, defence counsel indicated that the accused had seen still images taken from the CCTV footage but not the footage itself.

46That said, the plea still has some utilitarian value as it has saved the community from the cost of a trial and spared the complainant from the ordeal of giving evidence.

47In all of those circumstances, I have concluded that it is appropriate to accord a fairly modest discount in sentence for you pleading as and when you did.

Remorse

48Having considered your denials and lies in the record of interview, the timing of your plea and the circumstances in which it was entered, and other relevant material, including the letters you have addressed to the court and the complainant, respectively,[16] I have come to the view that any remorse that you do have is belated and quite limited.

[16] Exhibits 5 and 6, respectively.

Victim impact

49In a recently prepared victim impact statement,[17] the complainant sets out in clear and powerful terms the significant and ongoing impact that your offending has caused her.

[17] Declared on 6 August 2024 (exhibit C).

50She feels that your offending has impacted her in many ways and changed her life. She has experienced depression and anxiety. Her relationship has broken down. Whilst having no actual memory of what occurred, she is aware that something horrible happened. She has been placed in an unenviable and invidious position because, as she notes, the anxiety of not knowing everything but also at the same time not wanting to know has her tossing and turning at night. During the two years that has elapsed since the incident occurred, she has experienced an ongoing roller coaster of emotions and stress.

Prior criminal history

51I note that you have a relevant but quite limited prior criminal history, Mr Kuir. In the period between July 2012 and September 2016, you appeared in South Australian Courts on 12 occasions in respect of approximately 13 offences which mostly involved driving and bail related offences.

52You have no prior convictions or findings of guilt in respect of any sexual offences.

53However, you have been previously sentenced on two occasions for the South Australian offence of 'fighting'.[18]

[18] In 2012 and again in 2013.

54For your prior offending, you have received fines and bonds, one of which you breached.

55On any view, your current offending must be seen as a troubling escalation in the seriousness of the offending you are prepared to engage in.

Personal circumstances

56I now turn to consider your personal circumstances.

57You attended a good school in Nairobi and completed the equivalent of a Year 12 education.

58Since leaving school, you have been consistently employed and appear to have a strong work ethic.

59You have been in two significant relationships. The first produced two sons who are now aged 11 and 9 and living with their mother in Kenya. She has written a positive reference in support of your ongoing contact with her and your sons, who you were maintaining contact with via Facetime calls two to three times a week.

60A later relationship produced a further son who is now 3 years old. That relationship broke down in 2022 in the context of your increasing use of alcohol and drugs. Subsequent intervention order proceedings were initiated. You now have no contact with that former partner or son.

61You travelled to Australia on a humanitarian visa in 2009 and have since become a permanent resident but not an Australian citizen.

62You experienced difficulties in making the Footscray Bar a going concern when the COVID-19 pandemic hit. After buying out your business partner for $70,000, most of which came from a personal bank loan, you experienced considerable financial difficulty.

63I have had regard to the contents of the report prepared by the psychologist, Mr Newton.[19]

[19] Mr Newton assessed the accused on 27 June and 19 July 2024 and prepared a report dated 26 July 2024 (exhibit 2).

64He notes the importance of you receiving further treatment for your alcohol and drug abuse. Providing you can receive the offence-specific treatment you require and are able to maintain control of your substance use, your level of risk of engaging in further sexual offending is in the moderate range. Absent that intervention, and/or in the context of continued substance abuse, the level of risk would remain elevated.

65In Mr Newton's view, your greatest risk for relapse to substance abuse will be in the period immediately following your release into the community. Accordingly, he considers that you would benefit from an extended period of supervision and support following your release, to ensure your continued abstinence from drugs and engagement with appropriate treatment at that time.

Matters in mitigation

66Your counsel was able to rely on a number of matters in mitigation on your behalf, including the following.

67For pleading guilty to these charges as and when you did, you are entitled to a commensurate discount in your sentence.

68You have displayed a limited degree of remorse for your offending conduct.

69You experienced an unfortunate and deprived childhood during which you were exposed to the conflict in Sudan. You were raised by a single mother and therefore were deprived of the benefit and guidance that a father can provide. Your time spent in a refugee camp in Kenya was clearly a difficult experience. It is appropriate to take your deprived background into account in a general way in accordance with the principles discussed in Bugmy’s case.

70You are supported by a number of the members of your family, including by your mother, older sister and cousin, all of whom attended court. Written references were provided to the court by your ex-wife and a nephew, spoke highly of your parenting of your two sons and of the mentoring role that you played in supporting that nephew, particularly in the context of his basketball career.

71I accept that the role that you have played as a founding member of the South Sudanese Basketball Association and as a coach of the Adelaide Warriors Team who compete in an interstate community basketball league, has been significant.

72I have no doubt that you have and will continue to find the adult custodial environment a difficult experience, particularly because this is the first time that you have had to negotiate such an environment. I accept that you will find it more difficult because of your concern about being deported at the end of your sentence. I allow for the fact that having to serve a custodial sentence will achieve some measure of personal deterrence in your case. I have taken those matters into account when determining the appropriate sentence.

73It is to your credit that you have tried to use your time on remand productively by working as a kitchen billet. You have also completed a six-hour drug course. In Mr Newton's opinion, whilst you require further treatment, you have at least developed some insight into your drug use and some awareness of relapse prevention and harm minimisation principles.

74You appear to have a good work ethic and have a consistent work history, even working two jobs on occasion.

75You are devoted to your two sons and no doubt your extended absence from their lives while you serve this sentence will also go some way towards deterring you from any repetition of this kind of criminal conduct.

76Your counsel sought to rely on your lack of an appropriate father figure, lack of guidance as to the issue of consent, and the skewed objectification of women you were exposed to when mixing with other young males, in an attempt to provide context for your offending and to reduce, to some degree, your level of moral culpability for it. I find myself unpersuaded by that submission.

77In his report, the psychologist who assessed you in June and July of this year, noted that whilst you professed to being unclear about the effect of intoxication upon a person's ability to give free and informed consent, you were clear in stating that an unconscious person could not give consent to engage in sexual activity. It is also relevant to note in this context, that your use of the tissue is a powerful demonstration of the fact that you well knew that what you had been doing to the complainant was wrong and occurred without her consent.

78And, on your own account, you were affected by alcohol and drugs (cocaine) when you offended. As Mr Newton noted, it is likely that such use would have disinhibited you, increased your sexual desire and made it more difficult for you to reflect on your conduct. You were aware of those disinhibiting and stimulating effects from your previous drug use. Furthermore, it is clear that you remained aware of the wrongness of your conduct, according to Mr Newton.

Relevant statutory regime

79The offence of rape alleged in Charge 2 is a category 1 offence.[20] Accordingly, this court must impose a custodial order, other than by way of a combination sentence for that offence.[21] The court is also prohibited from imposing an aggregate sentence where at least one of the offences is a standard sentence offence.[22]

[20] Sentencing Act 1991 (Vic), s 3(1)(d).

[21] Ibid, ss 5(2G) and 5(2GA).

[22] Ibid, s 9(1A)(ab).

80The offence in Charge 2 is also a standard sentence offence, as I have said.[23] The standard sentence for rape is 10 years.[24] Where the custodial sentence imposed for a standard sentence offence, or the total effective sentence imposed for two or more sentences (at least one of which is for a standard sentence offence), is less than 20 years, the court must impose a non-parole period not less than 60 per cent of the sentence or total effective sentence, unless the court finds it is not in the interests of justice to do so.[25]

[23] Ibid, s 5A(1)(a) and Crimes Act 1958, s 38(3).

[24] Crimes Act 1958, s 38(3).

[25] Sentencing Act 1991, s 11A.

81The period specified as the standard sentence is 'the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[26] In determining the objective factors, a court must consider only the nature of the offence and not the personal circumstances of the offender.[27]

[26] Ibid, s 5A(1)(b).

[27] Ibid, s 5A(3).

82The correct approach which a sentencing judge is required to take in respect of a standard sentence offence has been considered and explained in a number of Court of Appeal cases, including that of Brown v The Queen.[28]

[28] (2019) 59 VR 462 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

83Critically, the sentencing court must take the standard sentence into account as a relevant sentencing factor when sentencing for a standard sentence offence. But, as with the maximum penalty, it is a legislative guidepost and does not affect the instinctive synthesis nor permit a two stage sentencing process. Indeed, it does not affect the matters a court may or must consider when sentencing. Care must be taken in not ascribing undue weight to this consideration which is, after all, not determinative.

84The sentencing court is not constrained by the legislatively defined 'objective factors'. The need to and manner of assessing the seriousness of an offence is not altered by this regime and so remains an integral part of the instinctive synthesis process.

85Whilst a court may have regard to past cases in terms of general principles it cannot have regard to current sentencing practices other than those which relate to standard sentence offences.

86The court is ultimately required to state how the sentence imposed relates to the standard sentence by identifying the facts, matters and circumstances bearing upon its judgement as to the appropriate sentence.

87I note that no statutory minimum sentencing regimes apply in this case.

88I also note that the prosecution did not make any application under s 11 of the Sexual Offenders Registration Act 2004 (Vic).

Sentences in other standard sentence offence cases

89The prosecution provided a table of sentences imposed in other cases in which an offender was being sentenced for rape under the standard sentence regime. However, it focused on those cases where the offender and victim were strangers.

90Whilst the prosecution submitted that the case of Essa[29] was the most similar factually to the present case, the defence highlighted the fact that the offending in that case was protracted and therefore easily distinguishable.

[29] DPP v Essa [2024] VCC 42.

91Clearly, no two cases are ever the same or on all fours and that is certainly the situation here given the myriad of differences in the circumstances of offending and of the offenders.

92Considering these cases has been an exercise of very limited utility. In part, that is because I consider the fact that the accused and complainant were strangers to have been of lesser significance than some of the other circumstances, for example, the complainant's extreme level of vulnerability.

Gravity of the offending

93I now turn to a consideration of the objective gravity of your offending, Mr Kuir.

94The aggravating factors which are common to both offences include the following:

·The offences are charged on a rolled up basis and involve two relevant acts of touching and penetration, respectively;

·The offending occurred at your business premises in circumstances where you breached the duty of care that you, as the owner of that business, owed to the complainant as a patron;

·The complainant was extremely vulnerable as she was severely intoxicated to the point of being unconscious and incapacitated and therefore unable to defend herself or raise an alarm. Her vulnerability was only exacerbated by the fact that she was alone in a private upstairs room and therefore out of the sight of others;

·The emotional and psychological impact of the offending on the complainant has been very significant and remains ongoing; and

·The offending occurred whilst you were on bail for an unrelated matter.

95In respect of the penile-vaginal penetration aspect of the rape offence, it has the additional serious aggravating circumstances that such penetration occurred while you were not wearing a condom and so put the complainant at risk of contracting a sexually transmitted disease and of becoming pregnant.

96I consider your offending to be fairly opportunistic in circumstances where the available evidence does not permit this court to infer that you had decided to sexually assault the complainant before taking her upstairs. And, you did not commence to sexually assault her for a period of approximately 8 minutes thereafter.

97Whilst your offending was not protracted, it did take place over a number of minutes and was certainly not fleeting or momentary in nature.

98I have absolutely no doubt that at the time that you sexually assaulted and raped the complainant, you were acutely aware that she was drunk to the point of being unconscious and therefore unable to consent or put up any physical or verbal resistance to what you were doing.

99In all of the circumstances, your criminal conduct can only be described as being predatory and extremely callous in nature. You treated the complainant as a sexual object to be used as a means of achieving your own sexual gratification.

100In the case of the tissue, my view is different. I consider you to have engaged in that act of penetration in order to minimise if not negate any chance that your previous act of penile penetration to the point of ejaculation would be discovered. In short, you attempted to remove your semen from the complainant's vagina so as to escape the legal consequences of your earlier criminal conduct. It was a selfish and callous act of self-preservation on your part. No other inference as to the reason for you behaving in that way is reasonably open in my view.

101When viewed overall, your offending is to be properly assessed as being very serious indeed and as involving a significant level of moral culpability on your part.

102In my opinion, the offence of sexual assault, which involved intimate skin on skin contact to very private parts of the complainant's body, falls at the upper reaches of the mid-range on the spectrum of seriousness for that type of offence.

103As for the rape offence, it reaches the very threshold between the mid and upper parts on the spectrum of seriousness for that type of offence.

104Before leaving this topic, I wish to make clear that in coming to the conclusions that I have about the seriousness of the offending in this case, I have been very mindful not to over-react to the CCTV footage of this incident. Whilst it clearly captures and depicts what is, on any view, a sickening episode, the following cautionary observations of Niall JA in Shau v The Queen[30] appear to me to be apposite to this case:

The CCTV footage is confronting. However, the attack is not made worse because it was filmed, and it is important that the images are not given undue weight. Nevertheless, they allow an appreciation of the severity of the attack and the vulnerable position in which [the victim] was placed.[31]

[30] [2020] VSCA 252.

[31] Ibid at [45].

105Whilst that case involved a physical rather than a sexual assault, the logic and underlying rationale as to the need for caution are still relevant and applicable to the circumstances of this case, in my view.

Relevant sentencing principles

106In a case such as this, the sentencing principles of general deterrence, denunciation and just punishment are weighty considerations.

107Specific deterrence and protection of the community are of less weight but still important.

108Your age and prospects of rehabilitation are another significant consideration for this court. Doing the best that I can on the available material, I have concluded that those prospects, while somewhat guarded, are fair.

109The totality principle must be considered and applied in circumstances such as these where an offender commits multiple offences over a relatively short period in the course of a single criminal episode. In order to ensure that the total effective sentence is a fair and just one, and that the corresponding non-parole period is appropriate, this court needs to accord an appropriate degree of concurrency between the sentences imposed on Charges 1 and 2.

110That said, there is also a clear need for a moderate degree of cumulation as between those sentences given that each offence involves a separate and distinct level of criminality and added to the overall gravity of the offending.

111In the end, this court must step back and take a last look at the sentences imposed and the effect of any order for cumulation to check that the proposed sentence is commensurate with the total level of criminality engaged in, no more and no less.

Sentencing submissions

112In his sentencing submissions, defence counsel acknowledged the seriousness of the offending and the appropriateness of a head sentence with a non-parole period for that offending. However, he urged the court to give due weight to the matters in mitigation upon which Mr Kuir could rely and to impose the least punitive sentence that was open. While arguing for a meaningful disparity between the head sentence and non-parole period, counsel eschewed any suggestion that the interests of justice required a non-parole period of less than 60 per cent of the head sentence.

113For their part, the prosecution sought to highlight the serious aspects of this offending and the importance of such sentencing considerations as general deterrence, denunciation and just punishment. Ultimately counsel appearing on behalf of the Director submitted that this was very serious offending which warranted a significant punishment in the form of a head sentence with a non-parole period.

Analysis

114In my view, the nature, extent and seriousness of the offending in which Mr Kuir engaged is such as to call for a very significant term of imprisonment. If this court were to do otherwise, it would simply fail in its duty to justly punish Mr Kuir for that offending. Furthermore, taking such a course would fail to accord the necessary weight to a number of relevant and important sentencing principles, including general deterrence and denunciation.

115The sentence that I intend to impose on Charge 2 is higher than the standard sentence for the offence of rape, which is 10 years' imprisonment. Having identified and considered the relevant matters in determining the sentence, including the very serious nature of this offence of rape and Mr Kuir's high level of moral culpability for it, together with his plea of guilty and limited remorse, I have determined that taking such a course is warranted and appropriate.

Sentence

116Mr Kuir, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case, I have decided to sentence you as follows.

117You will be convicted on each charge and sentenced to the following terms of imprisonment.

118On Charge 1, sexual assault, 2 years.

119On Charge 2, rape, 10 ½ years.

120The sentence of 10 ½ years imposed on Charge 2 will be the base sentence.

121I order that 6 months of the sentence imposed on Charge 1 is to be served cumulatively on that base sentence.

122The total effective sentence is therefore 11 years' imprisonment.

123In respect of that head sentence, I fix a non-parole period of 8 years.

Pre-sentence detention

124Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 729 days of pre-sentence detention, not including today's date, in respect of today's sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.

Section 6AAA indication

125Pursuant to s 6AAA of that Act, I indicate that but for your plea of guilty you would have been sentenced to a total effective sentence of 13 years and 3 months' imprisonment with a non-parole period of 10 years.

Ancillary order

126I make the disposal order in the terms sought by the prosecution, pursuant to s 78(1) of the Confiscation Act 1997. In exercising that discretion, I have had regard to the fact that your counsel did not oppose the making of such an order.

Other matters

127Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Chernok?

128MR CHERNOK: No, may it please the court.

129HIS HONOUR: Ms Churchill?

130MS CHURCHILL: No, Your Honour.

131HIS HONOUR: Mr Chernok, will you be conferring with your client in the cells downstairs or by other means in the near future?

132MR CHERNOK: I will be, yes.

133HIS HONOUR: All right.  Well in that case Mr Kuir can be removed from the court now, thank you.

134MR CHERNOK:  Your Honour pleases.

135HIS HONOUR:  He may be taken downstairs.

136Adjourn the court until 4 o'clock, thank you.

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