Director of Public Prosecutions v Luwam (a pseudonym)
[2022] VCC 174
•21 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LUWAM (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2022 | |
DATE OF SENTENCE: | 21 February 2022 | |
CASE MAY BE CITED AS: | DPP v Luwam (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 174 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence – Attempted Rape – Sexual Assault
Catchwords: Attempted Rape – Sexual Assault – Mental Impairment – Youthful Offender – Plea of Guilty – Remand during Covid-19 Pandemic
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269 – R v Mills [1998] 4 VR 235 – Azzopardi v The Queen [2011] VSCA 372 – Frecker v The Queen [2021] VSCA 331 – Webster (a Pseudonym) v The Queen [2016] VSCA 66 – Boulton v The Queen [2014] VSCA 342
Sentence: 18 months imprisonment plus 3 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
| For the Accused | Mr R. de Vietri | Gallant Law |
HER HONOUR:
Summary
1Michael Luwam,[1] you have pleaded guilty to one charge of sexual assault and one charge of attempted rape.
[1] pseudonym used
2At the time of the offences on 20 December 2019 you were 21 years of age. The victim of your offending, Ms Lidya Kidane,[2] was 17 years of age.
[2] pseudonym used
3You and Ms Kidane met earlier in the day at Melton railway station. You accompanied her and her friend in the area, including going to an abandoned house and to McDonald's where you ate together. The two girls were drinking wine from a cask and you had some wine also.
4At around 8 pm the victim's friend caught the bus to go home. You and the victim attended the Woodgrove Shopping Centre. You shared a cigarette with her at the front of the shopping centre, before she said she was going inside to go to the toilet. You asked to accompany her and walked inside together. You told her you knew a mutual friend. You then saw a girl who you wanted to make jealous and so you asked the victim whether you could hold her hand. She agreed.
5You and the victim walked down a corridor to the toilets. You followed her. The victim removed her hand from yours. She told you to leave but you did not. She went into the cubicle and, believing she had locked the door, she proceeded to take her pants down. She sat down intending to urinate.
6You entered the cubicle. You then tried lifting up her legs. You were kissing her on the neck and tried pushing yourself on top of her. That is Charge 1 sexual assault.
7She told you to 'Get the fuck off [her]' and continued to swear at you and push you off her. She punched you in an attempt to defend herself and told you 'No'.
8While you were assaulting Ms Kidane a cleaner, Ms Karlie Villinger, heard the struggle and went to investigate. She could hear banging noises coming from the cubicle. Ms Villinger approached the cubicle and asked if 'everything was okay'. The victim replied, 'No, no, help me - he is assaulting me'. Ms Villinger could not get into the cubicle so she radioed security for assistance and went out into the hallway. You then left the cubicle and followed Ms Villinger outside for about 20 seconds, before re-entering the female toilets.
9The victim had come from the cubicle and was in the bathroom. She attempted to run away from you and started to pull up her pants, however, you grabbed her and pulled her to the floor. She was screaming. You forced her pants open, breaking the zipper. You pulled her top up exposing her breasts. You touched her breasts. You then rubbed your penis against her vaginal area and tried to force it into her vagina. That is the charge of attempted rape.
10Ms Kidane was fighting against you. Fortunately, you were interrupted by the arrival of a security guard, Mr Samuel Roark-Perez. He observed you standing over the victim. Your pants were pulled up. The victim was on the ground in a semi‑sitting position attempting to pull her pants up from around her ankles. Her genitals were exposed. She was screaming and crying. She told him that you had attacked her.
11You started pacing backwards and forwards before attempting to leave the toilets. You tried to push past Mr Roark-Perez saying things like, 'Don't worry mate, I am just going to go'. Another security officer arrived and they both attempted to apprehend you. You became aggressive and resisted, including striking Mr Roark-Perez in the head. He smelt a strong smell of alcohol on you. Another two guards arrived and together they handcuffed you.
12Police arrived soon after. You told them and the security officers that the victim had tried to rape you.
13During your arrest the victim, who was clearly in a state of distress, locked herself in the toilet cubicle. She told Mr Roark-Perez that she was having an anxiety attack. She made an immediate complaint of rape, telling him that she had tried to fight you off but you were strong. She showed Mr Roark-Perez scratches on her left elbow.
14Sergeant Rachel Reece observed the complainant crying hysterically in the toilet cubicle. She took her to the police station where the victim made a VARE about her ordeal.
15After your arrest you were searched and found to have a condom on your penis.
16You were assessed by a forensic medical officer at 1.20 am on 21 December 2019 and deemed to be unfit for police interview.
17You were remanded and spent 550 days in custody before being granted bail in June 2021.
Impact on the Victim
18This is clearly serious and disturbing offending. It must have been terrifying for Ms Kidane. Her state of distress immediately afterwards and during the VARE is obvious.
19Although I have not received a victim impact statement from Ms Kidane, I can accept that the instant effect on her must have been significant. This was an unwarranted, sudden attack on her by a virtual stranger. I accept that the impact must have been immediate and also ongoing. This type of offending is likely to create anxiety, fear and mistrust. It is likely she struggles to go out alone or be alone in isolated situations. It must have caused a traumatic response for her.
Objective Gravity
20You hung around her and her friend through the course of the early evening. Your attention, including when you stripped naked at the house, was largely unwanted and not returned. You followed Ms Kidane to the toilet block at a time when she was alone and therefore vulnerable. It was getting late. You cornered her in the small space of a toilet cubicle. She was semi-naked which must have been humiliating for her. You pushed yourself on her despite her protests and her efforts to resist you. Her lack of consent was obvious, expressed through her resistance. She told you no. Your offence of sexual assault in those circumstances is serious.
21At a time when she must have thought her ordeal was over, you then returned to the bathroom and assaulted her again. This was despite the interruption of the cleaner. You were physically violent, pushing Ms Kidane to the floor and pulling her clothing off or up. Again, her lack of consent through her state of distress was obvious. Nonetheless you persisted, rubbing your penis against her vagina and making a concerted attempt to force it into her. Luckily, she was able to fight back.
22
Fortunately, the quick thinking of Ms Villinger and the speedy arrival of
Mr Roark‑Perez forced you to stop what you were doing. It is only their intervention and the ability of the victim to fight which really caused you to desist.
23Those factors make this a serious example of the offence of attempted rape.
24I cannot conclude at what point you formed your intention to sexually assault or attempt to rape Ms Kidane. I agree with the prosecution assessment that it appears to be opportunistic offending. Similarly, I cannot conclude at what point you placed a condom on your penis, but your intention was clear and was formed at some point ahead of or during your assault of the victim.
Sentencing Principles
25The principles which govern sentencing where there is offending such as this are clear. I must impose a sentence which has in mind denunciation on behalf of the community. It must be a sentence which punishes you and which generally deters others from acting in a similar way and it must have community protection as a focus.
26I must take into account the maximum penalty of 20 years' imprisonment for attempted rape and 10 years' imprisonment for sexual assault.
27There is no doubt offending such as this calls for an immediate term of imprisonment. Current sentencing practices make that clear. That is not in dispute here.
28What is in dispute is whether I should return you to custody for a period longer than the 18 months you have already served on remand and after an eight‑month period on bail.
29There are some particular features pertinent to you, Mr Luwam, which have led me to an unusual outcome in your case. In summary, there were genuine issues around your mental impairment, such that an investigation into your fitness to plead was launched. While fit to stand trial those matters enliven the principles enunciated in R v Verdins[3]. Those assessments have also led to diagnosis and confirmation of your eligibility under the National Disability Insurance Scheme for a support package. Your time on bail has been with that support and has been positive.
[3] R v Verdins 16 VR 269.
30Further, there is your age and the particular considerations in sentencing youthful offenders and the desirability of your rehabilitation.
31Before I turn in detail to those matters, I will outline your personal history. That is provided in detail in several psychiatric reports provided on the plea.
Personal History
32You were born in November 1998 and are currently aged 23. At the time of this offending, you had only recently turned 21 years of age. You were born in Ghana and came to Australia with your father when you were about five years old.
33You do not know your mother. She has been absent from your life and you are reluctant to talk about her. According to Dr Rajan Darjee you grew up feeling abandoned by her. You are, in fact, reluctant to talk about your early years in any detail, however, described 'lots of trauma'. You and your father spent time in Tasmania before coming to Melbourne.
34You completed Year 11 and behaved well at school despite experiencing racism and bullying. In your late teens, however, you began drinking and drug taking and your grades declined. You were kicked out of home by your father and stepmother and were then homeless for a significant portion of your late teens and young adulthood.
35You have had minimal employment, for example, two months where you were cutting aluminium with a blowtorch and doing some welding.
Prior Criminal History
36You have a limited criminal history with all offences being dealt with in 2019. Several are not relevant, however, there are offences of assault and property damage which are concerning. For those matters you were variously placed on a bond with conditions to continue mental health treatment.
37You have no prior criminal record for sexual offending.
Mental Health
38Around the time you were removed from home you had your first contact with mental health services. You have had 11 inpatient admissions to hospital psychiatric units dating back to 2016.
39Dr Turnbull states:
'This man has a bipolar affective disorder and there is consensus among the previous assessors for that diagnosis. He has had significant and protracted manic episodes and required psychotropics to settle him back into a relatively normal mood state.'
40Your most recent inpatient admission prior to this offending was in May 2019 when you were an inpatient at the Mid West Adult Acute Inpatient Unit for a month.
41Your treatment in the community has been complicated by non-compliance with medication and by illicit substance misuse. At various times you have been subject to compulsory treatment pursuant to the Mental Health Act 2014. That has occurred both in the hospital setting and in the community.
42
After your remand on these matters concerns were raised about your mental health. You were psychiatrically assessed on a number of occasions.
Dr Leon Turnbull was engaged by your legal representatives and assessed you in May and August 2020. He had the benefit of having previously assessed you in 2017. You were also assessed by a consultant forensic psychiatrist,
Dr Rajan Darjee, of Forensicare at the request of the Office of Public Prosecutions. That report is dated 20 January 2021. Those reports must be read with some care given they were written with issues of fitness and the defence of mental impairment in mind.
43
You were also assessed by a senior neuropsychologist attached to Forensicare, Dr Harriet Downing, at the request of those looking after you at
Ravenhall Correctional Centre.
44According to Dr Darjee most of your episodes when you are mentally unwell have been of mania with psychotic symptoms. Those symptoms have included 'being generally and sexually disinhibited, overactive, elevated in mood, having grandiose and persecutory delusions and displaying rapid and fidgety thinking and speech'. You have also had at least one episode when you were described as depressed and you have previously attempted suicide.
45When you are compliant with medication and engaged with mental health services, and not abusing substances, you are described as managing to achieve stability and function well.
46
You were previously under the care of a mental health team via the
Harvester Clinic. You reported to Dr Turnbull that prior to your offending you had not been taking your medication. At that time, you had been homeless for about three months, having previously been living on your own in St Albans. You were receiving support through the Melbourne City Mission.
47There was a debate between the parties regarding the fact that two days before this offending you were seen at the Harvester Clinic and described as well. Your medication was reduced slightly. Mr O'Toole, on behalf of the prosecution, submitted that in those circumstances I should find there was no operating mental impairment at the time of this offending such as to establish the requisite nexus required in Verdins.
48
However, following your reception to prison a psychiatric nurse described you as having low-grade paranoid ideation and soon after, a consultant psychiatrist noted that you were suffering from a manic episode, including pressured speech, elevated mood and sexual disinhibition. You were, in fact, treated at
Thomas Embling Hospital between January and March 2020.
49Dr Turnbull quoted the following extracts from that period: on 14 January 2020, you were assessed by a psychiatric nurse who noted 'has clear intent to harm himself further with his goal being to kill himself'. Two days later you were seen by a consultant psychiatrist and requested a Bible. You were found to be 'quite activated' and 'believed he was being sexually assaulted at night by the officers'. On 17 January 2020 a psychiatrist confirmed 'manic relapse of bipolar 1 affective disorder with pressured speech, overfamiliarity, persecutory delusions of being raped in his cell'. He recommended a significant increase in psychiatric intervention.
50There was a note from a psychiatric registrar dated 17 March 2020 which, according to Dr Turnbull, interestingly, said:
'As he presents with manic symptoms during his relapses it is possible that an elevated sense of self-worth and increased libido may play a role in the sexual offending behaviour during this time.'
51You were returned to prison around March 2020 and you were then accommodated at the Erskine Unit which is a subacute psychiatric treatment unit at Ravenhall. At other times you were accommodated in St Paul’s Unit, a psychiatric rehabilitation unit at Port Phillip Prison. Dr Turnbull, who previously managed the Erskine Unit, states that:
'That would indicate that the level of severity of his illness would be somewhere in the severe range, as there is ordinarily a healthy waiting list for prisoners to gain access to the unit.'
52Antipsychotic medication in the form of olanzapine and paliperidone, along with the mood stabiliser sodium valproate, were prescribed for you in custody. Since April 2020 you have been described as stable and well, with no entries noting any symptoms of mood disturbance or psychosis.
53According to Dr Darjee the body worn camera footage of police gives an indication of your mental state and also your state of intoxication. He states that:
'At the time of this offending he appears to have been suffering a relapse of his bipolar affective disorder with a further episode of mania, albeit that in the days just before and just after he was seen by mental health professionals and not described as very acutely unwell.’
54He noted within the month of your reception to prison you were ‘clearly manic’ and required a period of compulsory treatment in hospital.
55In relation to alcohol, he also states that you were:
‘...disinhibited by being intoxicated with alcohol and by the emerging manic episode. Intoxication with alcohol and becoming unwell may also have contributed to him misinterpreting or misunderstanding the victim’s behaviour.’
56In my view, the fact you presented relatively well at Harvester Clinic a couple of days before this offending does not discount the fact that at the time of the offending you were mentally impaired. Both Dr Turnbull and Dr Darjee referred to your presentation at Harvester Clinic. They have taken into account your state at times prior to and following the offending.
57Dr Turnbull stated:
‘…the material and the history I obtained are consistent with someone who, at the specific time of the alleged offending, was psychiatrically unwell ... At a minimum, him having a bipolar affective disorder and being manic and remaining manic for the following months after being received into prison, suggest that at the specific time of the alleged offending, he was thoroughly psychiatrically affected.’
58He, in fact, concluded that a defence of mental impairment was available to you. Although that defence and issues of unfitness were ultimately not pursued, the consensus of the two psychiatric assessors is that you were mentally impaired at the time of the offending.
59Dr Turnbull also states:
‘I think, on balance, the evidence provided, taken as a whole, suggests that this man was in a psychiatric state such that he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions.’
Conclusion regarding Mental Impairment
60In my view the conclusions of both Dr Turnbull and Dr Darjee support the finding that you were mentally impaired at the time of this offending. This, along with your documented history of numerous mental health admissions, including involuntary admissions in the years and months preceding this offending, provide the basis for a conclusion that the principles enunciated in R v Verdins are enlivened here.
R v Verdins
61
It was conceded at the sentence indication hearing that if I reached that finding Verdins one, two, three and four may be enlivened. The question posed by
Mr O’Toole on behalf of the prosecution was to what degree you were affected and therefore to what degree this would impact the sentence I impose.
62Specifically, I find that your mental impairment and psychiatric state, encompassing an inability to reason with a moderate degree of sense and composure, is such that your moral culpability is reduced. To my mind that finding does have a bearing on the kind of sentence I should impose. In addition, I find that I should moderate the usual considerations which apply to both general and specific deterrence. They are not eliminated, but in my view a well-informed member of the community would understand the reduction of those considerations in the circumstances of your serious mental impairment.
63I am also of the view that, despite positive treatment in custody, a sentence of imprisonment may weigh more heavily on you. It has already seen you compulsorily treated and housed in a subacute psychiatric setting.
Time on Bail
64On 22 June 2021, likely given your mental stability in custody, your age and limited prior criminal history, you were granted bail.
65I was informed that your father was present at the bail application and was supportive of you. I was informed that your remand into custody has in some ways reignited your relationship with your father. He has realised that he needs to provide support and guidance to you. To that end he and your stepmother have taken you back into their home and you now have stable accommodation.
66You were bailed with a raft of stringent conditions, including a curfew, alcohol and drug exclusion, and a condition that you comply with your Area Mental Health Service and also your NDIS provider. You have navigated bail without any incident and without any further offending.
NDIS
67Your NDIS package was confirmed on 21 June 2021 as a result of your diagnosis of bipolar affective disorder. You now have funding for purposeful support in the community. That is a new situation for you.
68The value of your NDIS package is just over $50,000. I have been provided with the NDIS plan which outlines those supports and I heard evidence from your NDIS support coordinator, Ms Cindy Taylor-King. She was an impressive witness who is clearly across the requirements of her role. She indicated that her employer, Phoenix, is an NDIS provider which specialises in youth and disability services and, in particular, with young people where there is forensic involvement, that is, with the criminal justice system. She previously worked with Corrections Victoria for four years and it is apparent that she has a good knowledge of the workings of a community correction order in tandem with an NDIS package. She outlined the way the two can be complementary systems to provide maximum opportunity for support and intervention.
69Your package provides you with core support funding where a support worker can assist you engage in community activities, assist you with activities of daily living and ensure your attendance at appointments. Although you have used your allocation in the last six months during time on bail, if you are subject to a CCO an early review can be conducted so that similar assistance ensures you meet your new obligations.
70Your package also provides 'Capacity Building Supports' which are directed to therapeutic engagement, in particular psychological referral and treatment; improving living arrangements and assistance with budgeting should you move out of your father's home; and improved relationships which will include a behaviour therapist. That person will ordinarily be a registered psychologist. According to Ms Taylor-King they can work closely with Corrections Victoria on issues of risk, and discussion of offending behaviour, with an aim to provide a behavioural intervention support strategy.
71Ms Taylor-King indicated you have had several jobs but none local to home. She has also discussed with you her capacity as your NDIS coordinator to make referrals to mainstream services. She has foreshadowed that she will assist you to engage with ‘CVGT Australia’, which is an employment agency with a particular focus and speciality in providing youth and disability employment services. Through that agency you are likely to receive youth specific mentoring and assistance to identify appropriate employment.
72Ms Taylor-King confirmed her ability to work collaboratively with your Area Mental Health Service and with Corrections Victoria for a coordinated approach.
73In addition, she has experience of other clients subject to the Sex Offender Registry Scheme. She can assist in explaining reporting obligations and accompanying you for annual review interviews.
74Importantly, Ms Taylor-King stated that you are 'really indicating [he is] wanting a lot of mainstream supports'. She stated you have engaged regularly with her and with your current workers. She described you as 'always open to asking for help, aware of his goals, very motivated in asking for services' and that you have engaged well in all supports so far. There have been no incidents of concern.
Prospects of Rehabilitation
75Your positive performance during the eight months on bail is promising and bodes well for your ultimate rehabilitation.
76I note those protective factors I have just referred to by way of the support via your NDIS providers and also your family support. You will also be subject to the Sex Offenders Registration Scheme and its obligations.
77
You are under the care of Mid West Area Mental Health Service (Melton Clinic) and have a case manager Mr Eddie Batende. I have received an email from
Mr Batende who also states you have been engaging well. You are now subject to three-monthly depot injection and have been compliant. You regularly see a psychiatrist as part of your treatment. Mr Batende says their impression is that your mental state is stable and you are now being treated as a voluntary patient. You have no current manic or psychotic cognitions or depressive symptoms, though your insight into your illness, particularly the manic phases, is still poor.
78I note your acknowledgement to Dr Turnbull that you do not dispute your diagnosis of bipolar disorder and that you recognise the need to take your medication on an ongoing basis. That shows some insight. The fact you have been stable on medication now for almost two years is extremely positive.
79You also report stability in the community at times of compliance prior to this offending and seem to recognise the negative impact of illicit substance use on your mental health. You have not used illicit substances for some time, possibly since you were 19 years old.
80Further, Dr Turnbull stated that, 'Mr Luwam said that he would like to make his family proud and find some work in the future.'
81Employment would be a positive for you, as would further study. You appear to have some capacity given you were able to complete Year 11.
82You have no prior criminal record for sexual offending. It is critical for your rehabilitation that you undertake the sex offender program provided by Corrections Victoria. That, and other therapeutic programs, may need to be delivered as a one-to-one program as suggested by Dr Downing in her report.
83In my view your prospects of rehabilitation are reasonably positive. They hinge on your compliance with medication and staying away from any drugs or other illicit substances.
Plea of Guilty
84I take into account your plea of guilty. It is not an early plea, but a deal of time was spent investigating fitness.
85I could not view it as an expression of remorse. However, I must view that through the prism of your impairment.
86It is unfortunate the victim was cross-examined at a special hearing, however, that did result in a significant clarification of the charge you were facing.[4] A further pre-trial hearing clarified matters with the victim's friend and, in particular, that your version of events regarding having been to an abandoned house with the two girls earlier in the day was, in fact, corroborated.
[4] The charge of rape was withdrawn and replaced with a charge of attempted rape.
87I accept there were triable issues. In the circumstances, your plea, even at this stage, is significant.
88I also take into account it is a plea of guilty in the period of the COVID pandemic. Higher courts have been clear that a plea of guilty in the current climate where there is a significant backlog of criminal trials must be given a 'palpable' discount.
COVID-19 Pandemic
89You have also served your first term of imprisonment during the pandemic. There must be a reduction in sentence in those circumstances. That period represents possibly the most difficult time for prisoners in Victoria in the modern era. It has resulted in increased restriction of movement, lower availability of programs and reduction or complete cessation of in-person visits. It has also resulted in regular and lengthy periods of lockdown. I take those matters generally into account.
90You have also served a reasonably substantial period given it was your first term of imprisonment, given your age and given your pre-existing mental health issues. I take those matters into account.
Youthful Offender
91You fall into the category of youthful offender, being 21 at the time of the offending and 23 now.[5] Despite the usual punishment for an offence such as this, the considerations in the circumstances of a youthful offender are somewhat different. The principles applicable are those from the cases of R v Mills[6] and Azzopardi v The Queen[7]. They have recently been restated by the Court of Appeal in December 2021 in the case of Frecker v The Queen[8] regarding a 23-year-old who was 25 at the time of sentence.
[5] The Court of Appeal in December 2021 considered an offender who was 23 at the time of the offending and 25 at the time of sentence to fall into the upper limit of youthful offender.
[6] R vMills [1998] 4 VR 235.
[7] Azzopardi v The Queen [2011] VSCA 372, paragraphs 34 to 40.
[8] Frecker v The Queen [2021] VSCA 331.
92Their Honours referred to the comments of His Honour Justice of Appeal Redlich on behalf of the court in Azzopardi where he stated that there are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration:
'Courts recognise the potential for young offenders to be redeemed and rehabilitated. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders is one of the great objectives of the criminal law.
The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level but because the effective rehabilitation of a young offender protects the community from further offending.
Courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve the offender's prospects of successful rehabilitation. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.'
93I accept, however, that as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth. As the court stated in Webster (a Pseudonym) v The Queen[9] it is a difficult sentencing task when faced with serious offending and a youthful offender.
[9] Webster (a Pseudonym) v The Queen [2016] VSCA 66.
94In this case, there is no issue that a term of immediate imprisonment is warranted, despite your age and the other mitigating factors I have referred to. The feature of your status as a youthful offender, however, has an impact on the length of that term and particularly what is the appropriate sentence to enhance your prospects of rehabilitation.
Conclusions
95I accept the eloquent and thoughtful submissions of Mr de Vietri that your rehabilitation is best achieved by undertaking programs in the setting of your life. I accept that in turn enhances the prospects of community protection.
96Ultimately, due particularly to the considerations of your mental impairment and your youth, along with your plea of guilty and remand during the COVID‑19 pandemic, I have come to the conclusion that the appropriate sentence is one where the time you have already served on remand is the appropriate length of the term of imprisonment and which will then be followed by a lengthy community correction order.
97In taking that unusual step for such serious offending I am mindful of the Court of Appeal's comments in Boulton v The Queen[10], namely that a CCO can equally address requirements of punishment and deterrence on the one hand and rehabilitation on the other. In my view there is real public interest in your ongoing reclamation and rehabilitation.
[10] Boulton v The Queen [2014] VSCA 342.
98I have had you assessed for that purpose regarding your suitability and suitability for mental health treatment. There are difficulties noted by the assessors in terms of what they describe as your 'grossly impaired judgment'. Despite those concerns the conditions I sought are ultimately endorsed. I have heard further submissions this morning from Mr de Vietri. He and his instructor have conferred with you several times to discuss the community correction order, both its requirements and the consequences for breach, and have satisfied themselves of your ability to understand, to consent and to comply with such an order.
99Given my findings, and given the two offences are part of a single episode, I propose to impose an aggregate sentence.
100Mr Luwam, the sentence I impose on you is as follows:
On Charge 1 of sexual assault and Charge 2 of attempted rape you are convicted and sentenced to 18 months' imprisonment and, in addition, to a three-year community correction order.
101The conditions of that order are as follows: you are to be under supervision. You are to undertake treatment and rehabilitation in relation to drug addiction. You are to undertake treatment and rehabilitation in relation to alcohol. You are to undertake treatment and rehabilitation in relation to mental health and you are to undertake treatment and rehabilitation, namely, by way of programs, to reduce your reoffending. Those programs will include sexual offender programs and men's behaviour change programs.
102
In addition, you are to comply with directions given under your NDIS program and with directions given to you by your Area Mental Health Service. Lastly, you are to return to me so that I can hear about your progress on this order in
six months. I will have my staff get a date in relation to that.
103Mr Luwam, before I can impose the community correction order I need to know if you agree to do that order. Do you agree to do that community correction order?
104OFFENDER: Yes, Your Honour. Thank you so much.
105HER HONOUR: And do you understand that if you breach that order that you will come back to me and I will look to resentence you on this offending? Do you understand that?
106OFFENDER: Yeah, I understand.
107HER HONOUR: And do you understand that a breach could be either because you've reoffended some other way or because you are not doing what the Corrections people direct you to do?
108OFFENDER: Yes.
109HER HONOUR: All right. And do you understand you have to do what your Area Mental Health Service tell you to do when they say you need to come for medication for example?
110OFFENDER: Yeah, I understand.
111HER HONOUR: All right. And also, Cindy Taylor-King and your NDIS workers - that you need to follow their directions as well.
112OFFENDER: Yes, I understand.
113HER HONOUR: All right. And I will hear about your progress and you will need to reappear in front of me on 22 August so that I can hear how you're going on this order. Do you understand that?
114OFFENDER: Yes, I understand.
115HER HONOUR: All right. And that will be at 9.30 am.
116I declare that you have already served - I should have put it in days, sorry. It's 18 months' imprisonment but 550 days. I declare that you have already served 550 days' imprisonment and that that period should be reckoned as having been served under this sentence.
117But for your plea of guilty the sentence I would have imposed would have been an aggregate sentence of five years' imprisonment with a non‑parole period of three and a half years' imprisonment.
118In addition, there is mandatory registration under the Sex Offender Registration Act 2004 and that is - I'm sorry, you did tell me, Mr O'Toole. I think it's for 15 years.
119MR O'TOOLE: Yes, Your Honour, that's right.
120HER HONOUR: Yes. And that is for a period of 15 years. Ordinarily that paperwork would be provided to Mr Luwam, Mr de Vietri.
121MR DE VIETRI: If it can be forwarded to my instructor, Ms Calgaro, we'll ensure that we have a conference and go through that in person.
122HER HONOUR: Yes.
123MR DE VIETRI: The signature on that particular piece of paper is really just to acknowledge receipt of the paperwork from the Sex Offenders Register. So my instructor will have that signed in due course and confirm - or at least confirm in writing that it's been received by Mr Luwam.
124HER HONOUR: Thanks very much. Unless there's any objection, I'm happy to receive that by the close of business this week.
125MR DE VIETRI: Thank you, Your Honour.
126HER HONOUR: All right.
127MR DE VIETRI: And, of course, that doesn't affect the mandatory nature of the reporting in any case.
128HER HONOUR: No.
129MR DE VIETRI: It's just an acknowledgement.
130HER HONOUR: All right. Thanks. Are there any other issues to raise?
131MR O'TOOLE: No issues, Your Honour. There is just the application for the disposal of various products, including the condoms and a DNA sample.
132HER HONOUR: All right. Thanks very much. I'll make that order. I understand there was no opposition to that order being made.
133MR O'TOOLE: If the court pleases.
134MR DE VIETRI: That's correct.
135HER HONOUR: Thanks very much. Mr Luwam, I'll see you in August. I'll get a report before then and that will tell me how you're going. All right.
136OFFENDER: Yeah.
137HER HONOUR: I'll leave you on the link with Mr de Vietri. Thanks, counsel, for your assistance, both of you, in a difficult matter.
138MR DE VIETRI: Thank you, Your Honour. Just in relation to judicial monitoring
- Your Honour is probably well aware of this - I don't think Victoria Legal Aid usually fund the appearance of counsel. If it is Your Honour's preference that
Mr Luwam is represented, either by myself or my instructor, on that occasion, we'll make efforts to do so, but I was just wondering if Your Honour could indicate whether in this matter you'd be assisted by representation or - - -139HER HONOUR: I think I would. I'm hopeful the report will all be positive, but given the issues for Mr Luwam I think that would be beneficial to have you and your instructor involved in that ongoing way, Mr de Vietri.
140MR DE VIETRI: Yes, Your Honour.
141HER HONOUR: Thanks.
142MR DE VIETRI: I'll ask Ms Calgaro to note that and to make Legal Aid aware of that.
143HER HONOUR: Thanks.
144MR DE VIETRI: Thank you, Your Honour.
145HER HONOUR: All right. Thanks very much. We'll now stand down. Thank you.
146MR O'TOOLE: If the court pleases.
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