Director of Public Prosecutions v Malbeal

[2023] VCC 1568

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00500

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISMAEL MALBEAL

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2023
DATE OF SENTENCE:	31 August 2023
CASE MAY BE CITED AS:	DPP v Malbeal
MEDIUM NEUTRAL CITATION:	[2023] VCC 1568

REASONS FOR SENTENCE
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CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – rape - plea of guilty

Legislation Cited:      6AAA Sentencing Act 1991

Cases Cited:-

Sentence:                  imprisonment, Total Effective Sentence – 11 years. Non-parole period 7 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Mr R. Thyssen
For the Accused	Mr R. Thyssen	Mr G. Dunstan, Swan Hill Legal Co.

HIS HONOUR:

1Ismael Malbeal, you have pleaded guilty to two charges of rape.

2The facts of your offending are set out in Exhibit A, the prosecution plea opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.

3I incorporated into these reasons for sentence and sentence you on the basis of the facts set out therein.

4Very briefly stated on 1 December last year, you were working in the Swan Hill as Region as part of a labour hire agreement.  You are Vanuatu and were in Australia on a temporary work visa.  You were staying at the Swan Hill Holiday Park.

5

Your 26-year-old victim was only recently employed as a cleaner at that park. 

She had cabin accommodation there.

6At about 6.30 pm on 1 December, she was drinking with a group of friends in the park.  You joined the group.  Over the evening your victim became increasingly intoxicated, and blacked out at times.  You sat next to her and from time to time touched her.  You shared a joint of marijuana with her.  She was so intoxicated that she fell to the ground.  Others in your group left you to walk her back to her cabin.  When you got her there you carried her into the bedroom, you removed her shorts and underwear, you licked her vagina and tried to kiss her.  She was only semi-conscious, spaced out and she vomited as you penetrated her vagina with your penis.  That represents Charge 1, rape.

7You left her to go to the toilet but when you returned you lifted her legs and penetrated her anus with your penis.  That represents Charge 2, rape.

8You did not wear a condom on either occasion.  She told you to leave, then blacked out.  She woke at 1.27 am, the next morning.  She called her partner who came and collected her.  Police were notified and you were arrested at the Holiday Park.

9You were interviewed at the Swan Hill police station, with the assistance of an interpreter.  You made full and frank admissions as to your conduct.  Acknowledging that your victim was drunk and did not want to have sex with you. 

10Your victim filed a victim impact statement, Exhibit B.  Your conduct has impacted all parts of her life.  She feels humiliated and scared, she cannot work and is anxious about being around people.  She has nightmares and difficulty sleeping.  She is anxious and depressed.  She says that she is angry that you did this to her.  She feels extremely violated and dirty as a result.  She requires counselling to assist her to get through her day.  I take the victim impact statement into account in sentencing you.

11

Your offending represents extremely serious criminal conduct.  Parliament has set a maximum penalty of 25 years' imprisonment for the offence of rape.  It is a category 1 offence and the court must impose a term of imprisonment and a

non-parole term.  It is also a standard sentence offence.  The standard sentence set by parliament is 10 years' imprisonment.

12

The court must have regard to that standard sentence as part of the intuitive synthesis involved in sentencing you.  Like the maximum penalty, the standard sentence is a sentencing signpost, that forms part of that sentencing process.  Your offending represents a mid-level example of the serious offence of rape. 

You acted in an opportunistic way disinhibited by alcohol and perhaps cannabis. 

13Your personal circumstances are set out in Exhibit 1, your counsel's submissions.

14You are now 28 being born in Vanuatu in July 1995.  Your mother and father reside in Vanuatu and you have four siblings.  You were educated to Year 10 level leaving school at age 17.  You obtained some work in Vanuatu, but apparently work prospects there are extremely limited.

15You came to Australia in July 2022 as part of a labour hire arrangement, to undertake farm work in Australia.  You were working in the Swan Hill district picking oranges and peaches.  Your approximate income was $500 a week, of which you returned $200 a week to your family in Vanuatu.  You have a partner in Vanuatu of three years' relationship and a three-year-old son.  You have been in custody since you were arrested by police.

16I take into account in sentencing you firstly, your pleas of guilty.  Although those were not entered at an early stage, indeed at the start - the day before the trial was to commence.  I do accept that this matter was in fact always going to be a plea, once you obtained the advice of counsel.  It is unfortunate it was not dealt with earlier as your victim would have been spared the delay in finalising this matter.

17Your pleas of guilty still have significant value.  You have spared victim and the witnesses the need to give evidence.  You have saved the community the time and expense of a criminal trial.  Secondly, the value of those pleas of guilty is increased.  Increased because of the effect COVID-19 has had upon our legal system.  You have facilitated the course of justice, and entitled to a greater reduction because of that.  Thirdly, I take into account the fact that you have no prior involvement with police either here in Australia or in Vanuatu.  You fall to be sentenced as a man of otherwise good character.  Fourthly, I take into account your cooperation with the police and your full and frank answers in your record of interview.  Fifthly, you speak little English.  You will be isolated in custody, not only from your family in Vanuatu with whom you have limited phone contact, but also because you will have difficulty doing courses, or otherwise communicating in custody.

18Principles of general deterrence, just punishment and denunciation of your conduct are the principle sentencing factors in your case.  People who act as you did and violate vulnerable women, need to understand that they face significant terms of imprisonment.  You need to be adequately punished for your dreadful crimes.  Nothing other than significant terms of imprisonment is appropriate in your case. 

19You committed two serious rapes.  Because they occurred in roughly the same incident of offending, principles of totality dictate that there must be some concurrency in the sentences imposed.

20Would you stand up please?

21On both charges, you are convicted.

22On Charge 1, rape, you are sentenced to eight years' imprisonment.

23On Charge 2, rape, you are sentenced to eight years' imprisonment.

24I order that three years of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, the base sentence.  That is an effective term of imprisonment of 11 years.  And I order that you serve seven years and three months before being eligible for parole.

25

I declare the 272 days not including today has already been served by way of

pre-sentence detention. I indicate pursuant to s6AAA of the Sentencing Act that if you had not pleaded guilty, I would have imposed a term of imprisonment of

15 years with a non-parole period of 10.

26Any other orders required Madam Prosecutor?

27MS CARUSO:  No, Your Honour.

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