Director of Public Prosecutions v Lual

[2017] VCC 1463

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01925

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID LUAL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2017
CASE MAY BE CITED AS:	DPP v Lual
MEDIUM NEUTRAL CITATION:	[2017] VCC 1463

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. McDougall
For the Accused	Mr A. McMonnies

HER HONOUR:

1David Mabior Lual, a jury has found you guilty of the charge of indecent assault.  You were acquitted of the charge of indecent assault of a child aged 16 or 17 under care, supervision or control, (there was clearly evidence capable of causing doubt as to the complainant’s age) and of two charges of assault with intent to commit indictable offence.

2The facts underlying your offending are as follows.  On 27 February 2015, you collected the complainant and her mother in order to attend the St Paul's Anglican Church youth bible studies class in Ringwood.  The three of you were the first persons there. Soon after your wife and children arrived.

3The complainant set up your laptop and projector, then went with you to a shed behind the church to get some equipment.

4When the two of you returned you told the complainant's mother and your wife that you would take the complainant with you to the shops to get some snacks for the children.

5It was thought you would do that by going to Eastland Shopping Centre which was just down the road and only a few minutes away from the church.  However you drove on Mt Dandenong Road and then onto the Maroondah Highway in the direction of your home, a 15 to 20 minute drive.

6The complainant, who was in the car, at your behest did not question you because you were a priest of the church.  I should note that at the time you were working as an ordained deacon working at St Paul's Anglican Church.

7You drove to your house and got out of your car but the complainant remained there.  You started to walk into the house, but went back to the car and told the complainant to come inside.  She followed you and stood inside the door and you told her to go into your son's room and sit on the bed.

8She sat on the bed for a couple of minutes and then you returned, having changed into casual clothes, which were described by the complainant in her evidence as a T-shirt and tracksuit pants.

9You moved some clothing off the bed and laid down a towel behind the complainant on the bed.  You then started rubbing her back.  She felt uncomfortable and moved away.

10Your actions in rubbing her back underlie the charge on which you have been found guilty, indecent assault.

11You moved closer until your legs were touching and then the complainant jumped up and said she wanted to go home.  You said to her in Dinka, "Is it a mistake I brought you here?"

12The complainant then ran from the house screaming where she was seen by neighbours who took her in and police were called.

13You eventually left the scene and drove back to the church.  You were observed by neighbours to follow the complainant from the house when she first left, you, wearing particular casual clothing. You were then seen again driving to the church at which time you were seen to be wearing formal clothing.

14You denied all allegations and gave evidence on the plea.  You gave evidence to the effect that the complainant had asked to come with you and that you then discovered that you had left your wallet behind.  You therefore drove to your house.  The complainant followed you in.  You told the complainant to sit in the lounge room but when you came back from getting your wallet discovered that she, unbeknownst to you, was sitting in your son's bedroom.  You asked her what she was doing there, she sprang at you and tried to strangle you and then ran from the house screaming.

15The jury have clearly rejected this version of events.

16The maximum penalty for indecent assault is ten years' imprisonment.  I now turn to your personal circumstances.

17You are now 47 years of age and have no prior convictions.  You were born in South Sudan during the civil war.  It appears due to the disruption in your life from an early age that your date of birth is not entirely certain and your counsel submitted to me that it is most likely you were 45 at the time of this offending.

18Your parents were farmers who grew crops and who lost everything in the wake of the civil war; both their position and their land.

19At age 15 you were taken on as a child soldier which occupation you followed for nearly nine or ten years.  You were demobilised at age 24 or 25 by which time you had been blinded in one eye and shot in the leg.

20You were transferred to a refugee camp in Kenya and you married in 1992.  You lived at the refugee camp with your wife and children between 1995 and 2005 and you and your family emigrated to this country as refugees in late 2005.

21You settled in Melbourne.  Whilst in the camp you became an evangelist Christian and became a youth leader.  In Australia you joined the Uniting Church in Wattle Park, where for two years you were a lay preacher.  Then you moved to the Box Hill Anglican Church in 2007 and began preaching in the Dinka language to members of the community, your community who have settled here.

22You enrolled in Trinity College in 2008 and began a Diploma in Theology.  You have almost completed a Bachelor in Theology and are still studying.

23In 2012 you were accepted as a candidate for ordination.  You had been made an Australian citizen by then.  On 30 August 2014 you were ordained as a deacon.

24You have eight children aged between 23 years and 18 months.

25When you were ordained in 2014, you had to receive a registration, that is, a Working With Children's card which is issued by the Department of Justice.  When you were charged with these offences, that card was revoked.

26You and your family resided in housing commission housing in Lilydale at the time of this offending.  You remain in that home but the rest of your family have moved to Cranbourne where your daughter runs a day care centre for children; it being thought in the circumstances apparently that it was not appropriate that you reside there.

27It was submitted to me that this offending fell at the lowest end of the scale for offences of this kind and that I should deal with you by way of a fine or an undertaking to be of good behaviour.

28This was a submission made obviously by defence counsel on your behalf.  I do not accept that submission.  I do not accept that this offending falls at the lowest end of the scale.

29The jury were asked to infer from the surrounding circumstances that when you rubbed the complainant's back, it was done in circumstances of indecency.

30Those circumstances were that you had inveigled this young woman to come to your home alone, had directed her to a bedroom where you lay a towel on a bed behind her, and it was quite clear that the prosecution fact scenario was one where your action against the complainant, the rubbing of her back, was simply the start of an intended more serious sexual contact with her.

31In my view the prosecution case, having been put on that basis, the actions underlying your offending against the complainant, cannot be seen in isolation as a simple rub of the back.

32I am satisfied that this was offending against a young member of your congregation and here I digress, to indicate that there seemed to be unsurprisingly, some vagueness surrounding the complainant's date of birth, so that I cannot say that she was a young teenager.  But I can certainly say she was a young and vulnerable member of your community which held you in high regard and you held a position which gave you considerable power.

33Because of your position, her mother was happy to let her go in the car with you.  Because of your position, the complainant was happy to go with you and not to question your actions when you took a sudden divergence in the directions of your home when you left the church premises.

34This was in my view, an exploitative action by a man given particular power by his community and a predatory act which ended only because the complainant took the actions that she did, in jumping to her feet and running, screaming as was observed by the neighbours, from your house.

35You have shown no remorse for your actions.  You have denied everything the complainant has said.  She was cross-examined at length in the trial.  She had to relive the trauma of that experience.

36The complainant has made a victim impact statement.  In it she talks about the great opportunities that life in Australia had given her.  She expressed her thankfulness for that opportunity.  She went on to say as a result of your actions, she experiences enormous emotional distress.  I am going to quote directly from her victim impact statement.

"My mother could not believe what happened as she thought he was taking me for his son, the hand in marriage.  Immediately I started crying because I know our culture very well.  If that was to happen he would have talked to my father and my family member beforehand.  That day I had a million questions going through my mind like, 'Why me?', 'What did I do to deserve this?', 'What could I do?'.  I was blinded by the trust that I had for him as a priest.

For me this was like a horror movie that hounds in my mind.  I never thought this would ever happen.  Emotionally it really shook me up, to think someone that is like a mentor to you and somebody your mother trusts was capable of such a thing. 

Ever since this happened, it really put me in a place I never wanted to be in.  For months I was depressed.  I couldn't talk to anyone, not even my friend because I was so scared."

37She went on to say:

"I thought I could fight this but this was bigger than me.  I could not handle it on my own.  It really affected and bothered me."

38She said she could not concentrate on school work.  She did not go to school for weeks because of sleepless nights.  She said that she would wake up from a nightmare on a number of occasions.  She said:

"I would pray so that God would help me get this out of my head and help me not to be afraid of people all the time.  I could not step a foot outside without the fear, having someone will attack me."

39It is quite clear that members of the community sided with you and branded her a liar and that her family suffered as a result of the community turning against them.  This has all arisen as a result of this exploitative predatory offending against, as I have said, a young and vulnerable member of your community.

40I do not accept that this behaviour is of so little seriousness that I should deal with you only by way of a fine or by way of undertaking to be of good behaviour.

41However I do have to take into account your previous good history, the fact that you have no prior or subsequent convictions. I need to take into account to some extent, the extent to which this offending went. In the circumstances I am not satisfied as I must be, pursuant to s.5 of the Sentencing Act, that the only way I can deal with you is by way of a term of imprisonment.

42I have therefore had you assessed for placement on a community corrections order for which you have been found suitable.

43You were described as co-operative through the assessment interview process.  It has been recommended that I place you on a community corrections order that is long enough for you to undertake the sex offenders program.

44I therefore sentence you as follows.  On the charge of indecent assault, I am placing you on a community corrections order for a period of 18 months.

45I can only place you on this order with your consent.  So I need to explain the conditions to you.

46They are that within two days of the making of this order, two working days, you must report to the Office of Corrections, that is by Friday of this week;

47Whilst on the order you must not commit another offence punishable by imprisonment.  That does not have to be an offence for which you are imprisoned, but for which theoretically you could be imprisoned.  So if you stole a box of matches, theoretically you could be gaoled for that.  So you need to understand that any offending of that kind will lead to a breach and I will resentence you on this charge;

48The next condition is that you must report any change of address or employment to the Office of Corrections within 48 hours of the making of that change;

49You may not leave Victoria without the permission of the Community Corrections Office;

50You must not attend upon the Community Corrections Office under the influence of drugs or alcohol;

51You must report to and receive visits from the Office of Corrections;

52You must obey all lawful directions of the Community Corrections Office.

53I am also going to order that you undertake 120 hours of unpaid community work and you are to attend for programs to reduce reoffending, namely a sex offender's program.

54Do you agree to enter this order?

55OFFENDER:  I agree.

56HER HONOUR:  Thank you very much.  You may have a seat Mr Lual, while the paperwork is prepared.

57MR McMONNIES:  Your Honour, on the report, there was an error in the reporting office.  I have given your associate the actual office he has got an appointment with.

58HER HONOUR:  Good, thanks very much Mr McMonnies.  The order is a conviction.

59MS McDOUGALL:  Your Honour, there were also applications by the prosecution for a forensic sample and an application for a disposal order.  I do not believe Your Honour had formally ruled on the application for registration under the Sex Offenders Registration Act.

60HER HONOUR:  Yes.  In cases of this kind, the issue of whether a person is placed on the sex offenders register is a matter of discretion for the court.  The legislation makes it clear that before I can place you on the sex offenders register, I must be satisfied beyond reasonable doubt that you pose some sort of threat or likelihood of reoffending in the future.

61Given your prior history, I cannot be so satisfied and therefore will not place you on the register.  I very much doubt that that opportunity will ever come your way again, Mr Lual, where you ever to commit this sort of offence again.

62MR McMONNIES:  I might say that the disposal order is consented to and the other order is not opposed.

63HER HONOUR:  Thank you.  I think that was referred to at the time,
Mr McMonnies but thank you in any event.

64I am ordering, Mr Lual, that you provide within the next four weeks to attend the Lilydale police station where they will obtain a swab, a saliva sample.  If you refuse to co-operate in the police obtaining such a sample, police are entitled to use reasonable force in order to obtain that sample.

65I thank counsel for their assistance in this matter.

66MS McDOUGALL:  If it pleases the court.

67MR McMONNIES:  As Your Honour pleases.

68HER HONOUR:  Thank you very much.

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