Director of Public Prosecutions v Malin
[2023] VCC 2441
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED MALIN |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2023, 11 October 2023, 12 October 2023, 13 October 2023, 16 October 2023, 17 October 2023, 18 October 2023, 19 October 2023, 20 October 2023, 23 October 2023, 24 October 2023, 7 December 2023 |
DATE OF SENTENCE: | 21 December 2023 |
CASE MAY BE CITED AS: | DPP v Malin |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2441 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Turner | OPP |
For the Accused | Ms C Marcs | Anthony Isaacs Solicitors |
HER HONOUR:
1 In the course of these reasons I will refer to the complainant as Jenna Carr[1].
[1] A pseudonym.
2 Mohamad Malin on 24 October 2023 a jury found you guilty of the following; three charges of common assault, Charges 1, 2 and 8. One charge of intentionally causing injury, Charge 3. And one charge of rape, Charge 9.
3 You were found not guilty of intentionally damaging property. And two charges of common assault, Charges 5, 6 and 7.
4 Charge 4 was an alternative to Charge 3.
5 The maximum penalties for these offences are as follows; - Charges 1, 2 and 8 assault, five years. Charge 3, intentionally cause injury, 10 years and Charge 9, rape, 25 years.
6 Rape is a Category 1 offence and pursuant to s5(2G) of the Sentencing Act, a custodial sentence is mandatory for an adult offender. The court cannot make a combined sentence order of imprisonment and a community correction order.
7 Rape has the standard sentence of 10 years. The court must fix a non-parole period of at least 60 per cent of the sentence imposed unless it is in the interests of justice not to do so.
8 The factual basis upon which you are to be sentenced is consistent with the evidence given by Ms Carr in relation to the charges of which you were convicted, and is set out in the prosecution opening for trial.
9 You were in a relationship with Ms Carr and lived with her some of that time at a unit in Camberwell. You had met at a bar in the city some time in 2018. Ms Carr had a son and also a teenage friend, Riley Horton[2] who lived at the unit with Ms Carr for periods of time.
[2] A pseudonym.
10 In respect of Charge 1, early in 2019 Ms Carr and you had been drinking at a bar in the city. Upon leaving you walked down an alleyway behind the bar and punched Ms Carr to the face with a clenched fist without warning. You walked off ahead of her, then together went to the unit on the tram.
11 Charge 2, you both arrived home at Camberwell in the early hours of that morning. Ms Carr was unable to find the house keys to unlock the front door. Whilst trying to locate the keys you proceeded to punch her in the face and arms. Eventually she broke a window to get inside, to stop you from assaulting her.
12 Charge 3, intentionally cause injury. On 8 February 2019 you were at the unit with Ms Carr. Her son and Riley Horton were also there at the time. You had been going through her mobile phone when you found a conversation with another male from sometime before. Angered by what you found, you fought with Ms Carr and Mr Horton could hear banging coming from the room. He observed Ms Carr pinned to the bed being assaulted by you. She yelled at him to get out which he did. During the altercation you jumped up and kicked Ms Carr in the back approximately three times causing her significant pain. Ms Carr was having difficulty walking and you gave her phone so she could call her mother to pick up her child. You then left the unit. After Xavier[3] was collected Ms Carr called the home doctor service. You had returned by the time the doctor arrived. Ms Carr told the doctor she had fallen on her back earlier in the day. She was diagnosed as having suffered a lower back soft tissue injury.
[3] A pseudonym.
13 Charge 8 assault. In March 2019 Ms Carr was driving Mr Horton to school. You were in the front passenger seat and Mr Horton was in the back. Ms Carr was driving down Riversdale Road, Camberwell when you punched her hard in the left arm, causing her pain and bruising. She did not report this injury to a doctor.
14 Charge 9 rape. Your relationship with Ms Carr ended in about December 2019 though you would still sometimes stay at her unit or go there as some of your possessions were there. On 17 January 2020 you had an argument with Ms Carr and she put your goods on the balcony outside the unit.
15 At approximately 4.30 to 5 am the next morning you went to the unit and repeatedly banged on the door. You told Ms Carr you wanted to stay, you kept trying to touch her and told that you loved her. She told you, no but you went into the unit and put your phone on a charger. Ms Carr continued to ask you to leave. You were furious, cornered her and shoved her on the bed. She was covering herself with her arms for protection and you were yelling at her. Each time she attempted to get up, you pushed her back down. She was crying hysterically and began to have a panic attack. She required an asthma puffer due to being unable to breath.
16 You grabbed her breasts and attempted to pull her pants down. She told you she did not want to have sex with you and continually said, 'No' and 'Stop.' A struggle ensued and the neighbours heard screams. You eventually were able to pull down her pants and inserted your penis into her vagina. You did not use a condom and continued to penetrate her until you ejaculated.
17 There was a knock at the front door and you took a knife from the knife block in the kitchen. The neighbours had become concerned and came to check out what was happening. You told Ms Carr to answer the door and get rid of the neighbours whilst you were standing at the kitchen entrance holding the knife towards her.
18 Ms Carr told the neighbour 'she was okay.' After the neighbours left Ms Carr left with Xavier telling you that she had to take him for an appointment. You made her promise not to go to the police. She met up with a friend and ultimately the police were called.
19 Police attended at the unit and you were taken to the station. You were served with a family violence safety notice preventing you from committing family violence against Ms Carr and her son.
20 I received a victim impact statement from Ms Carr. As a consequence of your offending, she feels ashamed and embarrassed that she couldn't stop you, or have the strength to do so. She has suffered depression and struggled with issues of self worth. She is angry at herself for allowing you to treat her or disrespect her in the way you did.
21 She has struggled to develop new friendships and relationships due to her lack of trust in people. It has taken her time to feel safe alone with her new partner. Her relationships with family and friends have been impacted given the secrecy she has maintained regarding your treatment of her in the course of your relationship. She described her mental health and strength being so affected that her mother had to take care of her child for a number of months.
22 The date of son's birthday which should be a happy occasion, serves as a reminder of the rape that you perpetrated. She concludes;
'I struggle to see the point in living, I feel empty, I have completely my sense of hope.'
23 As to your personal circumstances I was provided with the following material;
24 One, a supplementary psychological assessment report of Carla Lechner dated 27 November 2023, Exhibit 1.
25 Two, a psychological assessment report of Carla Lechner dated
30 December 2022, Exhibit 2.
26 Character references from your sisters, Samaya, Exhibit 3 and Zara Malin, Exhibit 4. Your mother Sofia Abdallah, Exhibit 6. And Idil Ali youth participation and advocacy officer, Exhibit 5. I also was provided with the reasons for sentence of His Honour Judge Georgiou on 18 April of this year. I take all of that material into account.
27 His Honour Georgiou set out your personal circumstances as follows;
28 “You were born [in] June 1991 in Somalia and you are currently 32. Your family fled Somalia during the civil war and spent time in a refugee camp in Kenya. You have memories of very difficult times in Somalia where, because of the war you and your family on occasions had no food and nowhere to sleep.
29 You also have memories of difficult times in the Kenyan refugee camp witnessing violence and experiencing food shortages. You believe your father was locked up in Kenya, that being the cause of the separation between him, you and your mother for a number of years.
30 You came to Australia with your mother when you were seven. You lived in the Essendon/Ascot Vale area. Your father later joined you and your mother when you were 13. Your sisters were born in Australia.
31 Your first formal education was here in Melbourne. You struggled because of language difficulties however you went on to complete successfully year 12 at Princes Hill College. You had a stable and supportive home life. Your family is of the Muslim faith and your faith plays a significant part in your upbringing. You report religion being a major part of your life and have an understanding that you have done wrong by your religion.
32 It was submitted that you were a good student, particularly in years 7 to 9, however you fell in with a negative peer group. And from about the age of 15 you commenced to use cannabis. This caused your school work to suffer.
33 It was submitted you struggled to fit in the two worlds in which you were living. On the one hand was your family and your religion and on the other was your peer group who were using drugs and alcohol. This clash between your family's values and those of your peer group led to conflict at home. It was put that you wanted to fit in with your peers and like them, you became involved in drug and alcohol abuse.
34 After completing high school you completed a sports development course at RMIT. You then enrolled in a bachelor of applied science degree course at Victoria University with the intention of becoming a physical education teacher. You enjoyed playing soccer for South Melbourne reserves in your late teenage years. However, you stopped attending training as you were in your words, 'drinking alcohol and mixing with the wrong people.' You completed only one year of that course, opting instead to pursue paid employment.
35 You commenced to use methamphetamine and alcohol when you were aged 19 or 20. Since leaving university you have worked in a number of jobs, including factory work, at a warehouse, traffic management, scaffolding, bricklaying and landscaping. You estimate that since leaving school you were engaged in employment for about 50 per cent of the time.
36 In 2016 you were married in what was an arranged marriage. The relationship was short lived and your wife returned to Sweden in 2017 after about six months of marriage. I was informed that you later discovered your wife had fallen pregnant when she had left for Sweden and that you have a six year old son who has been diagnosed with severe autism in 2019.
37 From the time your wife left to go to Sweden, your drug and alcohol use increased and you deteriorated rapidly. You formed a relationship with another woman who was also a drug user. You and she moved to Canberra in
January 2021 looking for a fresh start but you fell back into drug abuse. You have a daughter from that relationship who was born in August 2021. And now lives with her maternal grandmother.
38 You ceased contact with your family in approximately 2016 but renewed it in 2019 when your grandmother with whom you were close became ill.
39 As to your current situation, you continue to have the support of your family. Both your sisters express the impact of your exposure to violence in war torn Somalia and childhood experiences in the camps in Kenya. You are viewed by your family members and others as a positive contributor to your community though your mother recognises the impact drugs have had on your behaviour. They express hope and support for you when you are released.
40 You have a significant history of drug and alcohol abuse. As to your drug use, you inform Ms Lechner that you commenced smoking cannabis when you were about 13. By the time you were 19 you commenced smoking ice and did so until you were arrested. Additionally, you have used a variety of other drugs and engaged in significant alcohol abuse. I understand you have never had any counselling or treatment to address these issues.
41 It was during the time that you were abusing substances that the offence for which Judge Georgiou sentenced you, namely one charge of rape occurred when you were in the grip of alcohol and drug abuse. You were largely itinerant, staying variously with friends on their couch, or in a hostel. The date of that offence was 21 September 2019. This offending occurred between January and August 2019, and that is Charges 1, 2, 3 and 8. And 18 January 2020, Charge 9. Your situation was therefore very similar to that described by
Judge Georgiou at the time of this offending
42 You had one prior conviction at the time of this offending for theft. You have a number of subsequent matters with three court appearances. In
November 2021 you received four months imprisonment for family violence offences. And in September 2022 you were fined for a breach of a family violence order. I was informed that this offending was in respect of a different female partner and related to breaches of an intervention order that had been put in place for her protection. And also involved an assault and a threat to kill her.
43 In April 2023 you were sentenced to five years and nine months with a
non-parole period of three years and ten months for rape of a different female.
44 These subsequent matters do not of course aggravate the sentence that I will impose. However, such conduct is relevant to your rehabilitation prospects and the need for specific deterrence.
45 Ms Lechner opined;
'That you use substances as a means of both gaining peer group acceptance and managing your mental health issues. Especially after your wife left the country and the abrupt end of your marriage.'
46 As to your current mental health Ms Lechner diagnosed you as suffering unresolved post traumatic stress disorder and symptoms of complex PTSD arising from your exposure to early trauma. Adjustment disorder and clinical depression and stimulant and cannabis use disorder which she regarded as currently in remission given you are in a controlled environment.
47 Ms Lechner opined;
'That persons with PTSD generally become more anxious and depressed in a custodial environment, particularly if the conflicts reminiscent of their original trauma.'
48 Your exposure to violence in Africa and perhaps also in prison, is likely to exacerbate your symptoms. You are currently reporting symptoms of a severe level of distress and extreme depression. Further your symptoms of PTSD have been exacerbated by your current imprisonment on account of the nature of that environment. As a consequence, you have reported 'Feeling quite isolated.'
49 Both these aspects of Ms Lechner's opinion are relevant to the application of Verdins. I accept the applicability of Verdins principles 5 and 6 that call for some moderation of the sentence in your case. That is by reason of your mental health conditions, most notably your post-traumatic stress disorder and adjustment disorder. Your experience in custody will be rendered more onerous than that of a person not suffering such conditions. And that your post-traumatic stress disorder and depression are likely to deteriorate in the context of a term of imprisonment.
50 Your moral culpability was high for this offending. That so, even having regard to your traumatic and deprived childhood before coming to this country. I accept some weight should be given in the sentence for the impact of that early trauma and deprivation on your level of culpability.
51 The offending occurred in early 2019, early 2020. An intervention order was made in January 2020 but you were not charged in respect of this offending until February 2022. You have through no fault of your own suffered an extensive delay and experienced anxiety with the matter hanging over your head. I take that delay into account in mitigation.
52 Your counsel submitted that there were features that boded well for your rehabilitation. You have strong family support since you have reconnected with them. And that if you can remain drug free you have shown that you can be gainfully employed.
53 Ms Lechner has assessed your risk of sexual offending at the moderate to high level when compared with other sex offenders. I note that when she previously assessed you, that you were assessed as moderate to low level. She regarded your increased risk rating being due to your more recent history of violent offending. She however assessed that you did not possess deviant sexual interests.
54 Additionally she stated;
'It's concerning to me that he didn't disclose his marriage and long-term intimate relationship at our first meeting. It's possible that he has an underlying resentment towards women on account of being abandoned in his marriage and his perception of used in this relationship with the victim. Mr Malin is therefore at risk of reoffending if disinhibited with drugs and/or alcohol and feeling used in a relationship such that this resentment may play out in violence, including sexual violence.'
55 She has recommended assessment by the specialist offenders assessment and treatment service to determine if they deem you suitable for any of their programs.
56 Your counsel conceded that your rehabilitation prospects depend on you addressing your drug issues. Additionally, that you require psychological assistance to deal with your mental health issues.
57 Having regard to the nature of this offending and your plea of not guilty and your need to address both substance use and mental health issues I consider your prospects are guarded. Clearly if you are unable to overcome, particularly your drug issues. Your prospects given this and other offending are poor.
58 As to the objective seriousness of this offending. The offence of rape carries a maximum of 25 years imprisonment. And is a Category 2 offence. It is one of the offences subject to the standard sentencing scheme. The penalty reflects the seriousness with which the offence of rape is viewed by Parliament and the community's abhorrence of such an offence.
59 The impact of your offending on Ms Carr has been significant. You resorted to violence in the course of your relationship with her. And your most serious offence rape occurred in the context of that relationship or in close proximity to it ending. At times when Ms Carr could have got assistance, particularly in respect of the rape, you ensured she did not.
60 The majority of your offending occurred in Ms Carr’s unit and at times when Xavier was at home. You persisted in the rape despite Ms Carr’s protestations that could be heard by neighbours. And you did not use any protection. You are not entitled to any of the benefits in sentencing that you may have had if you had pleaded guilty. Although that is not an aggravating feature.
61 Further I can have regard to your plea of not guilty in my assessment of your prospects of rehabilitation, your lack of remorse and insight in to your offending. And the impact that it has had on Ms Carr.
62 In light of the dates of this offending and the offence date for which you are already undergoing sentence, I must evaluate the overall criminality involved in all the offending so as to ensure there is an appropriate relativity between the totality and criminality and the totality of the effective length of sentences to be imposed. I consider principles of totality in respect of both of the head sentence and non-parole period.
63 I was provided with some comparative cases however they only serve as a guide with different factual bases for offending and personal circumstances for each individual. There's a further limitation in respect of Charge 9 rape, being recently part of the standard sentence regime. So there are less comparable cases available.
64 Sentencing considerations of general deterrence, denunciation and just punishment are important sentencing considerations. The sentence for this offending occurring as it did in the domestic violence context must be indicative of the court and the community's denunciation of your offending behaviour. The sentence must serve to put on notice to others in the community minded to engage in similar behaviour with this kind of treatment of female partners, involving both random violence and rape that they will risk stern punishment if they do engage in that behaviour.
65 Given that your offending occurred over a period of time, specific deterrence is also important. I also have regard to protection of the community from you and the principle of proportionality. These matters must be balanced against matters in mitigation, including your personal history and delay.
66 As indicated, the offence of rape is subject to the standard sentence scheme. The standard sentence operates as a legislative guidepost having the same function as the maximum penalty. As I have indicated the standard sentence for rape is 10 years.
67 Section 5A(3) of the Act provides the objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you. And wholly by reference to the nature of your offending.
68 Your counsel conceded your offending fell within the middle range of offending for assault and rape within the context of family violence.
69 The prosecution disputed that assessment, submitting your offending, or in particular, the rape was in the medium to high range.
70 The sentence that I am about to impose in respect of Charge 9 is lower than the standard sentence. In so sentencing, I have considered all relevant factors in assessing your sentence. Including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation of sentence. And determined that the following sentence, including that for rape is appropriate.
71 If you could please stand up Mr Malin.
- In respect of Charge 1 assault, you are convicted and sentenced to one month imprisonment.
- In respect of Charge 2 assault, you are convicted and sentenced to two months imprisonment.,
- In respect of Charge 3 intentionally cause injury, you are convicted and sentenced to six months imprisonment.
- In respect of Charge 8 assault, you are convicted and sentenced to one month imprisonment. And,
- In respect of the rape Charge 9 you are convicted and sentenced to seven years imprisonment.
72 One month of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 3 will be cumulative. Giving a total effective sentence of seven years and four months.
73 Two years of the sentence that you are currently undergoing will be cumulative on the sentence that I have just imposed.
74 Pursuant to s14 of the Act I set a new non-parole period of six years.
75 Application has also been made for a s11 Sex Offenders Registration Act order. Because you are to be sentenced as an adult for your second class three offence, in cases where rape is committed against an adult by a person who is a serious sexual offender as defined. The present offence before the court, that is Charge 9 constitutes a second class three offence. And I have a discretionary power to make an order.
76 The court can only make an order if after considering any matter it considers appropriate, satisfied beyond reasonable doubt the person poses a risk to the sexual safety of one or more persons of the community. The test regarding the above was summarised in Sayer v The Queen [2018] VSCA 177. The enquiry whether to make a registration order involves a two stage process. The first question is whether court is satisfied beyond reasonable doubt the person poses a risk to the sexual safety as defined. For the court to be so satisfied, the risk must be real rather than fanciful. The evaluation of risk is directed to the risk upon the offenders release into the community, assessed by what is presently known.
77 The second question which only arises if the court is satisfied as to the first. Is whether the order should be made in all the relevant circumstances.
78 The prosecution submitted, given the nature of this offending, your lack of remorse and your unresolved mental health issues and untreated drug issues as outlined by Ms Lechner, I should make the order.
79 Regarding the first limb it was submitted that notwithstanding it is not necessary for the court to be able to identify a risk to a particular person or class of people. You are a person who poses a risk to young female members in the community. You have been convicted of a rape of a stranger and of an intimate partner who were aged 19 and 21 respectively when you were aged 28.
80 Additionally, you have been convicted of other offences in the context of domestic violence against a different partner though not of a sexual offence.
81 Defence counsel made no submissions regarding that application. Without successful engagement and treatment there is a real risk you could continue to sexually offend against females when you finish your sentence and are eventually released into the community. Such was the opinion of Ms Lechner, if you do not engage in treatment.
82 Regarding the second limb of the test, I am satisfied the requisite risk exists and a discretionary order should be made in all the relevant circumstances.
83 I have considered the magnitude and nature of that risk, even taking into consideration the serious consequences for you in making such an order. I note the purposes of the legislation as set out in Sayer at 106 to 108 and the risk of further sexual offending against adult females. I propose to grant the order and the length of reporting period is life.
84 Is there any other matters?
85 MR TURNER: No Your Honour.
86 VOICE: No Your Honour.
87 HER HONOUR: Thank you. I'll stand down.
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