Director of Public Prosecutions v Mangok
[2024] VCC 1760
•1 November 2024.
guest
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-00741
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAKER MANGOK |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial:23 April 2024, 24 April 2024, 26 April 2024, 29 April 2024, 30 April 2024, 1 May 2024, 2 May 2024 | |
DATE OF SENTENCE: | 1 November 2024. | |
CASE MAY BE CITED AS: | DPP v Mangok | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1760 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — Found guilty by jury verdict – rape (1 charge); sexual assault (1 charge).
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Gray (a pseudonym) v The Queen [2018] VSCA 163; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 62.
Sentence: Total effective sentence of: 4 years and 9 months, non-parole period is 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Anderson | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Reardon | James Dowsley & Associates |
HER HONOUR:
Introduction
1Maker Mangok, you have been found guilty by jury verdict of one charge of rape and one charge of sexual assault. You were acquitted of one charge of sexual assault.
2You also pleaded guilty to the summary charge of breach of bail conditions which has a maximum penalty of two years.
3The charge of rape carries a maximum penalty of 25 years' imprisonment. Rape is a category 1 offence, and a custodial sentence is mandatory. Rape is also a standard sentence offence, and the standard sentence is 10 years' imprisonment.
4The maximum penalty for the offence of sexual assault is 10 years' imprisonment.
5In accordance with the verdicts of the jury I find the facts and circumstances of your offending to be as follows.
6
Sometime in the early hours of 27 June 2021 you were in the CBD and met
Hunter Patterson.[1]
[1] A pseudonym.
7
Mr Patterson was a friend of Bethany Curry.[2] Ms Curry was a 19-year-old woman from Wangaratta who had travelled to Melbourne with two of her friends,
Ella Beaumont[3]also aged 19 and Mia Castella[4] who was aged 21 years old.
[4] A pseudonym.
[2] A pseudonym.
8The three women had arrived in Melbourne the previous afternoon and were staying the night at an apartment on Spencer Street, after a night out. They had been out drinking at a nightclub with friends including Mr Patterson.
9After spending some time at the nightclub drinking and socialising, the women and Mr Patterson had left the nightclub, and the women had made their way back to the apartment.
10Ms Castella and Ms Beaumont, who were sharing a double bed, both went to bed. Ms Beaumont was very intoxicated.
11Ms Curry left the apartment to search for Mr Patterson who had not made his way back. When she came upon him outside a Nandos he was with you.
12Mr Patterson told Ms Curry that he did not know you but you had been left behind by your friends so he was hanging out with you. Mr Patterson asked Ms Curry if you could come back to the apartment, and it was her evidence that she reluctantly agreed.
13The three of you walked back to the apartment together. There was a charge of sexual assault which was Charge 1 which alleged that you touched Ms Curry on her bottom on the walk back however you were acquitted on this charge.
14
Once back at the apartment, Ms Curry went into the bedroom where
Ms Castella and Ms Beaumont were sleeping. Ms Curry tried to wake Ms Beaumont because she wanted her to meet you, thinking she may be attracted to you, but Ms Beaumont was asleep and could not be woken. You observed this.
15
You, Mr Patterson and Ms Curry continued drinking for a short time before
Ms Curry went to bed telling you, you could sleep on the couch.
16You went into the bedroom where Ms Beaumont and Ms Castella were sleeping.
17Ms Beaumont awoke to find her pants had been pulled down and you were on top of her with your penis inside her vagina. She tried to push you off, but you did not move. She said no. She pushed you harder, and this time you got off her and left the room. And that is Charge 2. Ms Beaumont went back to sleep.
18Ms Beaumont’s alarm went off at around 9.30 am. She awoke to find you in the bed beside her. Ms Castella was also in the bed.
19Ms Beaumont got out of the bed and went to the toilet where she was sick and vomited.
20Ms Castella woke up when she heard Ms Beaumont’s alarm go off. She saw you and Ms Beaumont in the bed. She tried to go back to sleep. She saw Ms Beaumont get up and leave the room. At this point she felt you take her hand and put it on your penis and you attempted to get her to masturbate your penis. She instantly pulled her hand away. And that is Charge 3.
21The next day the women disclosed to each other what had happened. Ms Beaumont made a complaint to Wangaratta police that night. Ms Castella made a complaint to the police on 4 July 2021.
22You were arrested on 25 August 2021. At trial it was put to Ms Castella that she was mistaken that you had sexually penetrated her. It was put to Ms Castella that she was lying about you putting her hand on your penis in order to support the allegations of her friend Ms Beaumont. Clearly the jury rejected these propositions and accepted the evidence of Ms Beaumont and Ms Castella beyond reasonable doubt.
23Ms Castella has made a victim impact statement. She says she has been diagnosed with complex PTSD and suffers anxiety. She says she will need therapy for the rest of her life. She says she is reluctant to go out and this has caused her to lose friends and she says she has difficulty finding employment.
24Ms Beaumont did not make a victim impact statement.
25On the gravity and effects on the victim of the offence of rape I have regard to the observations of the Court of Appeal in the case of Gray (a pseudonym) v The Queen in which it was said[5]:
'Rape is an intensely personal crime. The effects on the victim are not just those that flow from the physical invasion of their person and security, but also from more intangible loss of their rights and freedoms. This significant impact of rape on the victim needs to be given proper weight in sentencing; it cannot be overlooked or undervalued.'
[5] Gray (a pseudonym v The Queen [2018] VSCA 163 [53]
[3] A pseudonym.
26Turning to your personal circumstances.
27You were born in January 1999. You are presently 25 years old and you were aged 22 at the time of the offending.
28You were born and raised in Sudan and came to Australia in 2009 when you were ten years old.
29Your father died when you were only five and you left your mother in the Sudan when you came to Australia with your Uncle and your cousin. You have a number of siblings all of whom remain in Sudan.
30You spent time in a refugee camp. You have witnessed a number of highly traumatic events in war-torn Sudan.
31In Australia you lived in Perth until 2014 when you relocated to Melbourne.
32You continued to live with your uncle until 2019 when after a difficult relationship, he asked you to leave. Since this time your housing has been transient, and you have experienced periods of homelessness.
33You completed your Year 12 and you report that you did well and had no behavioural issues at school.
34You completed an apprenticeship as a bricklayer and you were working full-time until the time of your arrest.
35You have been with your current partner for three years and she is currently pregnant. Your partner is supportive, but you are anxious about the future of your relationship because of your incarceration.
36You were assessed by Ms Gina Cidoni, psychologist, on 19 August 2024 and she authored a report dated 21 August 2024 which was tendered at your plea.
37You told Ms Cidoni that you are innocent and that you remain in shock over your conviction. You told her you are unable to settle into prison life and consequently you are not working in prison.
38You report no mental health diagnoses but told Ms Cidoni that you have experienced depression and anxiety as an adult referable to your traumatic experiences in Sudan and as a refugee, and now also attributable to your conviction and incarceration. You have never had any mental health treatment or counselling and you told Ms Cidoni that you are currently not receiving any mental health treatment in custody.
39You told Ms Cidoni you have used various drugs since the age of around 15. Most disturbingly you told her you had used heroin from your late teens through until 2023. You told her you had been drinking alcohol since 2019 and after you were charged for these offences you were drinking around eight standard drinks a day.
40Ms Cidoni assessed you as a medium risk of reoffending. On the positive side she noted the following protective factors that could address risk which are your supportive relationship and your employment as a skilled labourer. On the other hand, factors contributing to risk were what Ms Cidoni found to be your cognitive limitations, your difficulty coping with stress and your lack of a treatment history.
41In summary Ms Cidoni concluded that although you had no formal mental health diagnoses there were indicators of substance abuse disorder, post-traumatic stress disorder (PTSD) and major depressive disorder, likely exacerbated by your drug use. Given your denial of the offending she could not come to any conclusions about how your drug use may have impacted on your offending, except to say it is well recognised that drug and alcohol use impairs judgment, lowers inhibitions and contributes to impulsivity and risk taking behaviours.
42On your youth she gives the opinion that you had underdeveloped impulse control and decision-making which in combination with your drug use and mental health issues would have influenced your behaviour at the time of the offences.
43She gives the opinion that with treatment your prospects for rehabilitation are 'cautiously optimistic'. She gives the opinion that the combination of your young age, mental health challenges and traumatic history the prison environment will be difficult for you, and indeed this is what you are experiencing.
44In terms of a criminal history you have one appearance in the Sunshine Magistrates' Court in 2019 for being in a private place without authorisation and a fail to answer bail. You were convicted and fined.
45You are a permanent resident of Australia however you are not an Australian citizen. You commenced your application in 2019, however in 2019 you were the victim of identity theft and as a consequence you do not have any identifying documents. You did not report this to the police, and you have not yet properly addressed and remedied this situation. This has stymied many aspects of your life but most critically contributed to you not completing your citizenship application.
46Turning now to the submissions of the parties and beginning with the matters put on your behalf by your counsel, Mr Reardon.
47Mr Reardon submitted that your background of trauma and disadvantage enlivened Bugmy[6] considerations in a general sense in that your moral culpability could not be equated with that of a person who committed the same offence but came from a stable home.
[6] Bugmy v The Queen [2013] HCA 37 (“Bugmy”)
48He submitted that your youth was mitigatory. He submitted that your immaturity is relevant to the assessment of your moral culpability. He submitted your chronological age at the time of your offending, 22, was not in itself conclusive of immaturity and that I should have regard also to your cognitive deficits. Furthermore, your rehabilitation should be at the forefront of the sentencing exercise.
49Mr Reardon submitted that you will be deported after your sentence, and this will make the experience of imprisonment more onerous and will destroy your opportunity to settle in Australia where you have lived since you were 10 years old.
50He submitted on the basis of Ms Cidoni's report that Verdins[7] limbs 5 and 6 were engaged in sentencing you.
[7] R v Verdins [2007] VSCA 62 (“Verdins”)
51He submitted that with supportive programmes in place to assist you I should assess your prospects of rehabilitation as 'cautiously optimistic'.
52
He submitted Charge 2 was objectively serious offending aggravated by
Ms Beaumont being asleep. On Charge 3 he accepted that the charge was aggravated by Ms Castella being asleep but otherwise he submitted it lacked aggravating features.
53He acknowledged that given Charge 2 and 3 concern different victims there had to be some cumulation but submitted the application of the principle of totality notwithstanding the application of the serious sexual offender provisions meant there should be significant concurrency between the charges.
54He acknowledged that a term of imprisonment was required consisting of a head sentence and a non-parole period.
55Ms Pezzimenti on behalf of the Director submitted that the offending involved two vulnerable victims. She submitted that you were a guest who abused the hospitality extended to you. She submitted you did not wear a condom when you penetrated Ms Beaumont exposing her to risk. She disputed that your youth in any way explained your behaviour. She also disputed the application of Bugmy principles submitting there was no causal connection between your background and your offending. She accepted the application of Verdins limb 5 but not Verdins limb 6.
56She submitted the only appropriate sentence was a sentence comprising a head sentence and a non-parole period.
57Turning now to my own assessment of the objective gravity of your offending and your moral culpability.
58You were a guest in the apartment in which you took the opportunity to sexually violate two sleeping women. These are the aggravating aspects in respect of both victims. In the case of Ms Beaumont you were well aware that she was in no state to consent to sexual intercourse having been present when attempts to wake her had failed earlier in the evening. You penetrated her without a condom exposing her to the risk of pregnancy and/or disease although there was no evidence that you ejaculated.
59Your conduct is really both opportunistic and predatory. On one hand you simply took the opportunity to seek sexual gratification at the expense of the two sleeping women. But looked at differently you took a callous and calculated advantage of two women in circumstances where you realised they were in a vulnerable state.
60On the charge of sexual assault, I accept that your conduct was momentary and I regard your offending on this charge to be a low level example of the crime.
61On the charge of rape I assess your conduct in the mid-range of seriousness for the offence.
62Your moral culpability on both charges is however high.
63Turning now to the application of the relevant sentencing considerations.
64I accept that Bugmy principles are engaged in a general sense in sentencing you.
65There is no readily discernible direct causal link between your background of trauma and disadvantage and your offending but I accept that your background has left you vulnerable to a transient lifestyle without proper guidance and support and vulnerable also to substance abuse. In this sense I accept your background can be taken into account by me to moderate your moral culpability for your offending.
66I also accept your youth to some modest extent explains your offending and moderates your moral culpability. You must have understood that your behaviour was wrong, but I accept in your case that given your immaturity you would not have appreciated the very profound and damaging consequences of your behaviour.
67On the basis of Ms Cidoni's report I accept there is some modest application of Verdins limb 5 in sentencing you. That is I accept the experience of prison will be more onerous for you than for a prison without your mental health difficulties. I reject the application of Verdins limb 6 the material does not go so far as to substantiate that there is a serious risk of a significant decline to your mental health.
68You face the prospect of deportation at the end of your sentence. You have lived in this country since you were a child and I accept the prospect of deportation will weigh heavily upon you in prison and will destroy your opportunity to remain settled in Australia.
69You have no relevant criminal history. You are still young. I assess your prospects of rehabilitation as reasonable given your youth and given your youth the objective of rehabilitation is an important sentencing consideration. In order to try and foster your rehabilitation I will give you the opportunity of some time on parole although I appreciate this is complicated by your migration status, that is you may not get the opportunity to be released into the community but may go into immigration detention.
70You fall to be sentenced as a serious sexual offender on Charge 3 the Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed, although the prosecution do not seek a disproportionate sentence. The Court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.
71I do intend to order some cumulation between the indictable charges given there are two victims.
72I take into account the maximum penalty for the offences; and I also take into account the standard sentence for the offence of rape.
73The standard sentence applies to an offence in the mid-range of seriousness based only on its objective factors. It is a legislative guidepost. It is but one matter that I must take into consideration, and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully all the facts, matters and circumstances I have taken into consideration in sentencing you.
74Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you rely, I intend to sentence you to a sentence that is less than a standard sentence on the charge of rape.
75Taking into account all matters which I am required to under the Sentencing Act and matters personal to you I intend to sentence you as follows. You do not have to stand up in the circumstances Mr Mangok.
76On Charge 2 you are convicted and sentenced to four years and six months' imprisonment.
77On Charge 3 you are convicted and sentenced to 12 months' imprisonment.
78On the Summary Charge you are convicted and sentenced to seven days' imprisonment.
79I direct that Charge 2 is the base charge and I direct that three months of the sentence on Charge 3 be served cumulatively upon it.
80That makes a total effective sentence of four years and nine months.
81Section 11A of the Sentencing Act, directs that unless it is in the interest of justice not to do so, the Court must fix a non-parole period, in this case of at least 60 per cent of the total effective term of imprisonment
82I your case I direct you serve a non-parole period of two years and 9 months. That is just under 60 per cent of the non-parole period but in consideration of your youth and the need to foster your rehabilitation I am of the view that it is in the interests of justice to do so.
83I sentence you as a serious sexual offender on Charge 3 and I direct that that be entered into the records of the Court.
84The pre-sentence detention served in this matter if 338 days not including today.
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