Director of Public Prosecutions v Mehrdad (a pseudonym)
[2024] VCC 2107
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSTAM MEHRDAD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2024, 23 January 2024, 24 January 2024, 25 January 2024, 29 January 2024, 30 January 2024, 31 January 2024, 01 February 2024, 14 June 2024, 10 October 2024, 29 November 2024, 16 December 2024 | |
DATE OF SENTENCE: | 19 December 2024 | |
CASE MAY BE CITED AS: | DPP v Mehrdad (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2107 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- SENTENCE
Catchwords: Sentence --- Rape --- Common Assault --- Make Threat to Kill --- Intimate Partner --- Trial --- Vulnerable Victim Isolated from Community --- Criminal History --- Offender with Complex Post Traumatic Stress Disorder --- Serious Sexual Offender --- Sex Offender Registration
Legislation Cited: Sentencing Act 1991 (Vic) --- Sex Offenders Registration Act2004 (Vic)
Cases Cited:Pasinis v The Queen [2014] VSCA 97 --- Kalala v The Queen [2017] VSCA 223 --- Director of Public Prosecutions v Patil (a pseudonym) [2020] VSCA 337--- Johns (a pseudonym) v The Queen [2016] VSCA 97 --- Jurj v The Queen [2016] VSCA 57 --- DPP v Avalos (a pseudonym) [2023] VSCA 117--- DPP v Mokhtari [2020] VSCA 161 --- R vVerdins [2007] VSCA 62 --- R vConnell [1996] 1 VR 436 --- Matheas v The Queen [2017] VSCA 330 --- Hoare v R (1989) 167 CLR 348 --- Bowden v R (2013) 44 VR 229 --- Sayer v The Queen [2018] VSCA 177
Sentence: 11 years 4 months imprisonment --- Non parole period of 8 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher at Trial and Plea Ms K. Do at Sentence | Office of Public Prosecutions |
| For the Accused | Mr J. Connolly at Trial Ms N. Menegas at Plea and Sentence | SLKQ Lawyers |
HER HONOUR:
1Rostam Mehrdad[1], I am now to sentence you for offences of rape, assault and threat to kill you committed against Ms Farah Nabila[2] during 2019 and 2020. You and Ms Nabila were in an intimate relationship at times during that period. Ms Nabila is a 47-year-old Syrian woman who arrived in Australia from Turkey in 2015. You met in 2019 when Ms Nabila was 42 years of age and you were 58 years of age. You are now 63.
[1] A pseudonym.
[2] A pseudonym.
2Ms Nabila was married in Iraq and has two children now aged 20 years old and 17 years old. She left her husband in 2015 and moved to Australia with their children. She and her husband had had marital issues prior to her leaving, however, they had promised their families that they would remain married. The intention was for her to sponsor her husband’s visa application and for him to eventually move to Australia. Ms Nabila first made a visa application on her husband’s behalf in 2016, though it was initially rejected.
3Ms Nabila spoke very little English, had limited supports and was struggling financially.
4In 2019 you were living with your two teenage children. You were working in your trucking business and you advertised a job on Facebook. Ms Nabila made contact with you in the hope of securing employment for her brother. That communication led to you having contact with her and ultimately you and she formed a relationship which lasted between approximately July 2019 and September 2020.
5Ms Nabila described your relationship in the following way –
'At the beginning he helped me. He gave me his car, and I, in return, I decided to clean his house, cook for him, and look after the kids. But he misused this help in return because I was - he saw me as, like, a lonely weak woman without a man, without parents, without anyone. And then he kept, like, giving me money, and he kind of manipulates me and forces me to do what he wants, and he knew that I don't want anyone to know about this because they're going to talk about … my relationship with him, and then people will talk about me. He used this as well against me.'
6During the course of that relationship you took the opportunity to sexually offend against her on three separate occasions.
Charge 1 – Rape (July 2019)
7The first of those offences occurred at your house in July 2019. Ms Nabila attended to help you with cleaning in return for use of your car. This was only the second or third time you and she had met in person. She took her children with her and they were playing with your children outside.
8Ms Nabila stated that before these events there had been no physical contact or affection between you and her. She also stated that she had not had sex for many years before this incident.
9Ms Nabila had gone upstairs to tidy your bedroom. You came into the room and you closed the door. You came over to her, ostensibly to assist, though began to touch her every time you moved closer to her. Ms Nabila said, 'I wanted to leave the room and then he held me from the back…. He turned me and tried to kiss me.' You tried to kiss her on the mouth. She said, 'I tried… to push him away but he pushed me on the bed and he removed my pants.' She said you touched her breasts and vagina.
10She said she was trying to resist you and that 'After I had tried to stop him touching me, he said, 'This is normal and it’s natural to happen between two people'.' In terms of resisting you she described physically pushing you and that you held her down. She said, 'I tried … with all my strength to push him with my hands, legs, but I couldn’t, he was strong…. Then he penetrated his penis into the vagina with force…' When asked 'What do you mean by force'? she said, 'It means he raped me.'
11You penetrated her for two to three minutes. She said, 'At that moment, I surrendered… because I tried to resist him and I was unable to… because he was strong. His body was strong. He held me by force.' You ejaculated inside her vagina.
12This forms the basis of Charge 1 of rape.
13After you withdrew your penis Ms Nabila saw that she was bleeding from her vagina. She was crying and angry. 'I was upset… there was blood and I was afraid and he said 'that’s normal because you haven’t had sex for a long time'.' She said, 'I told him that I didn’t want to do that thing and you forced me.' When asked why she was crying and angry she said, 'Because he raped me by force.'
Charge 2 – Rape (February 2020)
14Your relationship with her nonetheless continued and developed into a sexual relationship. You would see each other most days. At times you would visit her at her house and sleep on the couch in the loungeroom. She continued to perform housekeeping tasks at your house and to look after your children at times.
15In February 2020 Ms Nabila was at your home. You were aware that an application had been made for her husband to move to Australia and that he was awaiting approval of a visa. On this occasion when Ms Nabila was at your home she received a phone call from her husband’s immigration lawyer. She decided not to answer as she was fearful of your reaction.
16However, you saw that a call came through and asked to see her phone. Ms Nabila refused as she did not want you to see the caller ID. She said this sparked an argument. She said that she wanted to leave, however, 'he begged me to clean his room.' You told her she was 'not going anywhere' and 'we will clean.'
17Ms Nabila relented and went upstairs. She said, 'I thought I would clean quickly and go.' You told your daughter to take Ms Nabila’s daughter and leave the house. You went upstairs and entered your bedroom. There was a short exchange before you tried to kiss her. She said, 'When he tried to kiss me I moved my head to the side and so he kissed me between lips and cheek.'
18At that stage she reiterated that she wanted to go home. You responded saying, 'every time, you’re always saying no'. She reiterated to you that she did not want to have sex, but you pulled her close to you and began trying to touch her. She told you to let her go and that she had not had a shower, but you said 'no, I like your smell'. You told her that you wanted to have sex and you pushed her onto her back on the bed saying 'stay here a little bit with me, let’s enjoy it'. She was physically resisting.
19You removed her pants and then you touched her breasts before putting your erect penis into her vagina. You ejaculated inside her vagina. This forms the basis of Charge 2, rape. Ms Nabila does not remember how long the penetration lasted.
20She then dressed herself, collected her daughter and left your house. She described herself feeling 'sad and miserable.'
Charge 3 – Rape (September 2020)
21At some point in mid-2020 Ms Nabila became aware that her husband had been granted a visa and would soon be coming to Australia. She called you to tell you that she wanted to talk to you about this news. You were aware that her intention was to reunite with her husband and that they would live as a family.
22The purpose of her visit was to confirm to you that she would not see you anymore. She took you food and had the conversation with you on the sofa in your living room. She then stood up and told you that she would be going back to her house to eat with her children. You told her, 'No, stay my love…. Let’s have sex one last time to say goodbye.'
23Ms Nabila refused. She was standing next to the door when you pushed her to the couch. Her head hit the wall. You started to remove her clothing. She said, 'I resisted and tried to push him away.' She described you removing her tracksuit and then pulling her legs before penetrating her vagina with your erect penis. This forms the basis of Charge 3, rape.
24The penetration was painful for her. She described pain in her abdomen. She said the penetration lasted around four or five minutes.
25The incident ended after you ejaculated inside Ms Nabila. She then told you that she hated you. You were smiling at her and asked her why she hated you.
26In relation to Charges 2 and 3 Ms Nabila gave evidence that on those occasions and more generally, 'I would say, 'you are forcing me', and he would reply by saying 'you are my wife. You have to give me what I ask for.' I would say, 'no, you are just my boyfriend.' He would say, 'you have to give me what I ask for.' I would only say, 'I don't want it.'
Charge 4 – Assault and Charge 5 – Make Threat to Kill (September 2020)
27Despite the fact Ms Nabila’s husband had returned, you continued to contact her. You also came to her house and sent her threatening messages on multiple occasions. You were angry about the idea of her living with her husband.
28In late September she came to your house to tell you to stop and that she would not be with you. This made you very angry, and you told her that 'you are either mine or to the grave'. She said she took your comment seriously. She said then you put your hands around her neck and began choking her. Ms Nabila was in pain and could not breathe. Her eyes were watering. She described being afraid, 'I was shivering. I was scared.' This act of strangulation forms the basis of Charge 4, common law assault.
29You removed your hands but told Ms Nabila that she had to stay. You and she sat down on the sofa. Ms Nabila stated that 'He put a knife and scissors in front of him… He put them on each side, and he was pointing, one on each side and he said, 'I will kill [your husband]'.' This forms the basis of Charge 5, make threat to kill.
30Ms Nabila said she then spoke to you 'nicely,' and requested that she go home. She left soon afterwards and did not return to your house.
31During October 2020 you continued to message her, checking whether she was sleeping with her husband. Ms Nabila stated that 'he used to force me to show him – to open the camera and show him that my husband was not in the bedroom.' You told Ms Nabila that her husband was to sleep in the living room and she was to sleep in the bedroom.
32If Ms Nabila did not answer your messages, you would threaten her with statements such as 'if you don’t answer now, I’m going to enter the house.'
33You began posting videos and photographs of you and her on Facebook and YouTube and circulating material to her husband, his brother and her brother about your relationship with her, knowing this would be damaging to her within the community.
34Ms Nabila made a complaint to police in October 2020. She made a statement outlining the events constituting the threat to kill and assault. The police then applied for a family violence interim order on her behalf.
35In subsequent contact with the informant in May 2021 Ms Nabila revealed the nature of your sexual contact with her. She gave evidence that due to her cultural beliefs she had been unaware that your unwelcome sexual contact with her amounted to rape. She said that she understood rape to be an act between strangers, for example, where a person is abducted on the street. She also said she was ashamed of having had any sexual relationship outside her marriage and that culturally this was devastating for her.
36In June 2021 she made her first written statement outlining the sexual offending against her.
Impact on Victim
37Ms Nabila prepared a victim impact statement which was read out at the plea. She describes the mental, physical and social effect of your offending.
38She experienced social isolation and a loss of her support system. She said, 'I was exiled and shamed by my religious and cultural community due to being seen as dirty and disgusting… My husband left me and my children for months due to being disgusted in me. I was left to provide and take care of my children alone, which was difficult as I was unemployed and struggling both mentally and physically.' Ms Nabila has also experienced financial hardship. Her capacity for work has been affected and your offending left her 'too unwell to look for another job or placement. Leaving me to rely on my husband financially.'
She says, 'I began to feel angry, frustrated and had trouble sleeping due to the incident replaying in my mind… I lost my appetite, my will to live and my will to enjoy life. I felt disgusted in myself and shameful. I was mocked and exiled from my community. I became physically weak and frail… it reached a point where I spent multiple days in a mental health facility.
I have not attended a social event since the crime has happened. I have had friends and family pass away, get married and celebrate milestones without my presence.'
39While I am conscious that some of those consequences are as a result of her community’s response to her engaging in a relationship outside her marriage, I take into account the impact of your offending on Ms Nabila.
Sentencing principles
General principles relating to intimate partner violence
40The principles of sentencing which apply to cases of sexual and violent or threatening offending within intimate relationships are now well understood. Sentences must deter other offenders, usually men, from taking advantage of a partner for their own sexual gratification or from inflicting physical or psychological harm. Sentences must denounce the behaviour by reflecting the community’s disapproval of it, and sentences must work to protect women from being violated in a relationship.[3]
[3] See e.g. Pasinis v The Queen [2014] VSCA 97; Kalala v The Queen [2017] VSCA 223 at [59].
41Your relationship with Ms Nabila is complicated in that you were never living together, and you were aware of the fact she was making arrangements for her husband to arrive in Australia. There was a quid pro quo in that you assisted her while she performed menial tasks for you. Nonetheless, it can properly be characterised as an intimate relationship, given for a period of about 18 months you and she engaged in that way with each other as well as engaging in an ongoing sexual relationship.
42Not uncommonly women experiencing violence or sexual violence in a relationship do not report offending due to shame and embarrassment. There are usually complicated feelings towards the offender. Here, Ms Nabila’s feelings were obviously complicated by your financial assistance to her and the fact she felt somewhat indebted to you, along with the cultural issues.
43To an extent you took advantage of those facts. You told her that she was your wife, your partner and reiterated that, as such, you expected her to comply with your sexual demands. On the occasions of each rape you did not treat her as an equal or as a person worthy of your respect but were only concerned with your sexual gratification.[4]When the threat of leaving you became real you responded by forcing yourself on her sexually and later by physically choking her and threatening to kill her husband.
[4] Director of Public Prosecutions v Patil (a pseudonym) [2020] VSCA 337; Johns (a pseudonym) v The Queen [2016] VSCA 97.
44I accept the prosecution submissions that you demonstrated your entitlement in that way. That context is important in understanding your offending. It is an aggravating feature in those later charges, demonstrating, as it does, your attitude of possession towards her and your will to exert physical force against her.
Rape
45In addition to that broader context, I take into account that rape is an inherently serious and very personal offence. It is a crime of violence involving the invasion and breach of the physical integrity of another person.
46The seriousness of such a violation of another person’s bodily integrity and personal dignity by means of such a sexual intrusion is reflected in the maximum penalty of 25 years' imprisonment.
47In addition to the maximum penalty, rape is a Category 1 offence. The legislature mandates that such an offence may only be met by a term of immediate imprisonment. [5]
[5] Sentencing Act 1991, s5(2G).
48Further, parliament has declared that rape is a standard sentence offence warranting a standard sentence of 10 years' imprisonment for an objectively mid-range example of such an offence.
49Those three aspects of the applicable sentencing regime are not starting points nor end points, but rather guideposts which I must, and do, take into account as part of the ultimate instinctive synthesis of sentencing.
50That synthesis requires me to consider the sentencing principles I have outlined above and to consider the intimate relationship as the context of this offending.
51I accept the submissions by Mr Fisher that the existence of that relationship and the fact of other consensual sexual activity with Ms Nabila is in no way mitigating. In some ways it elevates the seriousness of your offending because you raped the woman who should have been able to trust you to respect her, to show affection and to care for her. You breached her trust at each point of your offending and showed increasing anger and control when you thought she might leave you.
52I consider her to have been a vulnerable victim. She was somewhat reliant on you and indebted to you as she described. Her lack of English, lack of family and other supports were impediments to her seeking help. Her cultural issues and understanding of rape also meant on each of the first two occasions she had not complained.
Objective gravity
53Turning to my assessment of the objective gravity of the individual offences. The features outlined in Jurj v The Queen[6] are commonly understood to be pertinent to an assessment of the objective gravity of a rape offence. Those features are non-prescriptive and in my view there are some limitations in using them in rapes within intimate partner settings which tend to have a different complexion.[7] That complexion is amply described by the Court of Appeal in DPP v Mokhtari and repeated in DPP v Patil.[8]
[6] Jurj v The Queen [2016] VSCA 57.
[7] DPP v Avalos (a pseudonym) [2023] VSCA 117.
[8] DPP v Mokhtari [2020] VSCA 161; Director of Public Prosecutions v Patil (a pseudonym) [2020] VSCA 337.
54In assessing the objective gravity of your offending, I take into account the following features which serve to aggravate the offences of rape here.
Charges 1, 2 and 3 – Rape
55By her verbal and physical resistance, Ms Nabila had made it clear to you on each of the three occasions that she did not consent to your advances. On each occasion you ignored and overpowered her physically.
56The rapes reflected in Charges 1 and 2 are not pre-meditated in the way that word is usually understood, nor are they entirely opportunistic. On both of those occasions you orchestrated a situation where you were alone with Ms Nabila, then took advantage of that fact to sexually advance on her. Charge 3 is different in that the opportunity arose when she attended at your house to end your relationship.
57On the occasion of the first rape, you and Ms Nabila barely knew each other. You had not had any physical contact and were not in a relationship. You were aware that she had not engaged in sexual activity for some time.
58On the first occasion Ms Nabila suffered bleeding from her vagina and she felt pain in her vagina on the third occasion.
59In relation to Charges 2 and 3, there was time to reflect after the previous offences and to desist. The three rapes were committed over a period of about 14 months.
60You did not wear a condom on any of the three occasions, and you ejaculated into her vagina each time. Although that exposes a victim to sexually transmitted diseases and the risk of pregnancy, I must take into account that by the time of Charges 2 and 3, you and she had been in a sexual relationship and as such that is not particularly aggravating on those occasions.
61I accept the prosecution submission that on each occasion, given Ms Nabila’s verbal and physical resistance, which the jury must have accepted, it follows that you believed she was not consenting. Your moral culpability for each of the rape offences therefore is high.
62As against those features, I take into account and accept the submissions by Ms Menegas that many of the common aggravating features are absent, such as additional physical violence or threats at the time of the rapes. While not mitigating, that fact does not lead to further aggravation. Each episode was of relatively short duration.
63In my view the offences of rape in Charges 1 and 2 equate to objectively mid-range examples of that offence, while Charge 3 in my view is a more serious offence. Taken together they reflect serious offending.
64In relation to the offence of common law assault, the act of strangulation is a very serious form of that offence, it has potentially serious health consequences and is an act which you must have known carried risk of real harm to her. It continued for a period of time until her eyes were watering. It was accompanied by threatening words to her.
65In my view that is a serious example of a common law assault. The maximum penalty for that offence is five years' imprisonment.
66That act was soon followed by the threat to kill her husband. Words were accompanied by the production of menacing weapons. Regardless of your intention, she took the threat very seriously. Again, it was an act committed by you in an effort to retain control of the situation.
67Threats to kill cover a wide range of factual scenarios. In my view this is at least a mid-range example of such an offence. The maximum penalty for that offence is 10 years' imprisonment.
68Overall, as conceded by your counsel, your criminality in offending against Ms Nabila is serious.
Personal circumstances
69I turn now to your personal circumstances. I have had the benefit of a psychiatric report authored by Dr Hillol Das dated 7 February 2023 which was prepared pursuant to a Transport Accident Commission claim, a psychological report authored by Ms Daniella Kocic dated 1 May 2024, prepared for these proceedings, and a psychiatric report requested by me and directed to the issue of risk authored by Dr Sharath Thimmareddy dated 7 August 2024.
70You were born in Syria and are now 63 years old.
71You were the middle child in a sibship of seven and describe a good childhood and that you successfully completed your schooling to the equivalent of a Year 12 level in Syria. You then attended a police academy in Syria and worked as a police officer for seven years. You felt pressured into this profession by your father rather than pursuing your own creative interests including writing.
72You have a passion for writing and authored a number of political pieces and a political book expressing views against the Syrian government. As a result, you lost your employment with the police and ultimately you were forced to flee Syria due to fears you would be imprisoned.
73You immigrated to Australia by boat as a refugee in 1999 when you were 38 years of age and were placed in a detention centre for one year.
74You then settled in Melbourne and report you did not have any difficulties transitioning to Australia and initially resided in Ivanhoe and then relocated to Broadmeadows where you resided for some years.
75Two of your siblings were already residing in Australia. You maintained contact with them until your recent remand where it appears they have stopped talking to you. Both of your parents have deceased.
76You became an Australian citizen in around 2007. Although originally of Muslim faith, you converted to Christianity in around 2011 and have been actively involved in your church.
77You married in Syria and have five children who reside with their mother in Germany. You have 12 grandchildren and have not seen your children or ex-wife since your immigration to Australia, although you remain in some phone contact with them.
78You entered a relationship with your second wife Ms Mika in around 2003 or 2004. Together you have an 18-year-old daughter and a 16-year-old son. Your second wife had serious mental health issues including a diagnosis of schizophrenia. Your ex-wife had a family violence intervention order against you and at one stage child protection were involved in your family. Ultimately, however, both of your children were placed into your care. You had full time custody of them until your involvement in a traffic accident in 2019 after which time care became shared.
79You have been in other intimate relationships with two women in approximately 2013 and 2015, however, you say you ended these relationships once you began your relationship with Ms Nabila. Since being charged you are back in contact with both of those women and report being in an ongoing relationship with one of them.
80Originally in Australia you worked for two years as a taxi driver. That work was terminated in 2004 when you were charged with offences of introducing a child into prostitution. I will return to that matter in due course.
81After a period on Centrelink benefits, you then obtained employment in 2007 as a truck driver. You had your own trucking business, driving long haul routes in Victoria and interstate. Your trucking business ceased operation as a result of a serious accident in 2019.
82There is some conflicting information about the details of that accident, specifically whether a pedestrian or other driver was involved, however, drawing on the report of Dr Das written for TAC claim purposes, it appears that another driver swerved in front of your truck when you were travelling at 100 kilometres per hour and the result was a head-on collision. The driver of the other vehicle died at the scene. You were witness to the serious injuries and death of that young man. The accident was not attributed to you.
83That incident occurred on 9 December 2019 which I note is in the middle of the period of your offending before me.
84Prior to this event you had experienced some mental health problems when Child Protection were involved with your children and you at one time attempted suicide by drinking detergent when they were removed. However, after return of your children there were no further mental health issues.
85In contrast, the accident had serious sequalae on your mental health including ongoing flashbacks, difficulty sleeping, panic and anxiety, feeling emotionally overwhelmed and reliving those events. In 2020 you attended a mental health service in what is described as 'a state of grief and shock' having lost your truck, your livelihood, your company and dealing with your inability to work and provide for your family.
86You have been seen at various times by a psychiatrist and psychologist and you were ultimately diagnosed with post-traumatic stress disorder.
87Since the truck accident you have variously been prescribed anti-depressant and anti-psychotic medication and were engaged with Dr Kalpana Balgobind at Glencairn Private Consulting Suites for medication monitoring and management.
88You also engaged in counselling at The Talk Shop and underwent regular sessions with psychologist Mr Dimitri Hawa. You were placed on a disability support pension.
89Your mental health history is not entirely straightforward. You have had psychiatric admissions including an inpatient psychiatric admission in October 2020 in the context of an overdose with suicidal intent, and later you had a month-long admission at the Northern Hospital between July and August 2021 after you presented with suicidal ideation.
90Two months later, in November 2021, you underwent a neuropsychological assessment by Dr Matt Treeby to assess your cognitive and memory function. Dr Treeby found that your presentation appeared consistent with malingering. He found no evidence of an acquired brain injury.
91For completeness, I note that your fitness was explored as part of these proceedings and there were no issues with your fitness to stand trial.
92Ms Kocic confirms your diagnosis of PTSD and says in fact that that disorder is now complex. She also confirms that you present with a history of depression and anxiety symptoms which have developed as a secondary response to your PTSD.
93You are also diagnosed with adjustment disorder and acute stress disorder. Ms Kocic also notes that you have impressed with Cluster B personality traits (antisocial and borderline).
94It was not suggested that your mental health conditions enlivened Principles 1 to 4 of R v Verdins.[9] However, Ms Menegas submits that the existence of mental impairment at the time of sentencing enlivens Verdins Limbs 5 and 6. She relies on the report of Ms Kocic who opines that 'imprisonment would likely weigh more heavily on [you] than a person without [your] conditions… a custodial sentence is likely to be a negative experience for [you]; [you] are considered to be at risk of exploitation by other offenders in custody, and [your] naivety to the prison environment and criminal associates, in general, places [you] at a much higher risk than others.'
[9] R v Verdins [2007] VSCA 62.
95Ms Kocic opines that you demonstrate moderately severe depressive symptoms and severe anxiety symptoms. She states that for individuals such as yourself with symptoms of depression, anxiety and PTSD, the prison environment can exacerbate these symptoms and increase the risk of decompensation.
96Dr Thimmareddy confirms the diagnosis of PTSD, noting that you continue to be symptomatic despite receiving medication. He recommends the need for ongoing monitoring of your mental health.
97The applicability of Verdins Limbs 5 and 6 was not disputed by the prosecution.
98I accept that your mental health diagnosis, specifically your diagnosis of complex post-traumatic stress disorder, will operate to make your time in custody more difficult. I accept in combination with your adjustment disorder, severe anxiety and moderately severe depression, and given your history of suicidal ideation, there is a real risk that your mental health will decline in that setting.
99I also take into account your age and state of physical health. You suffered a heart attack in 2018 where you underwent surgery to replace heart valves. You take aspirin and medication to address high cholesterol. You use a spray medication to alleviate angina.
100You are now 63 and I recognise that the term of imprisonment I impose will take you into older age, consuming some years of what remains of your life.
Current circumstances
101Your time in custody will not be easy for other reasons. You are largely isolated, both because of your poor English and also because of your lack of family and other supports. Your only contact seems to be by phone with your two former girlfriends who are aware of your situation and remain supportive. You have had no visits while in prison.
102You are not working while in custody due to your health issues. Instead, a prison 'carer' has been allocated to you. They assist in you taking your medications on time and with your daily chores.
Plea of not guilty
103You pleaded not guilty to this offending and opted to run a trial, as is your right. That fact does not aggravate the offending or your personal circumstances. However, it means you do not receive the benefits which flow from a plea of guilty in recognition of its utilitarian benefit or as an expression of remorse. Ms Nabila gave evidence both at a committal and at the jury trial.
104You continued to deny the offending and continue to detail you perceived injustices which has limited an assessment to ascertain your level of insight. Dr Thimmareddy opines that despite you having good insight into your mental illness, you have poor insight into your offending and its impact on others. You maintain a belief that you were set up through this relationship so the victim could obtain money.
Prospects of Rehabilitation
105You have a prior criminal history. During 2003 to 2004, aged 42, you committed two offences of causing a child to take part in prostitution. I have read the sentencing remarks for that offending. It involved you, over the course of approximately two years, transporting in your taxi a 13- to 14-year-old girl for the purpose of her engagement in prostitution. You engaged in grooming behaviours by way of buying her items and transporting her for free. Thereafter, and despite knowing her age, you paid her and engaged in sexual acts with her on at least 10 occasions. A second charge reflected a specific incident. You told her you wanted her to stay with you and that you loved her.
106On 8 November 2007, in this court you received a term of imprisonment of two years and four months, wholly suspended for 28 months. You were placed on the Sex Offender Register for 15 years.
107The offending before me breaches that registration.
108You breached the suspended sentence by way of failure to comply with your SORA reporting obligations, but in 2009 the sentence was confirmed. You have been dealt with for breaches of your reporting obligations three other times during 2013 and 2014.
109Since committing the offences before me you have also been dealt with for persistent contravention of a family violence order made for the protection of Ms Nabila. You were sentenced to 20 days' imprisonment for that offending in November 2020. Again, in February 2021, you were dealt with for breaches of your reporting obligations, stalking and persistently contravening family violence order, again made for the protection of Ms Nabila. On that occasion you received 64 days' imprisonment and a 15-month community correction order.
110Your prior criminal behaviour and your subsequent offending does not aggravate the offending before me. Both are relevant, however, to the need for specific deterrence and community protection and to my assessment of your prospects for rehabilitation.
111Ms Kocic opines that your general risk of reoffending is low to moderate. The most significant risk factor for your risk to reoffend are your mental health issues, according to her. I do note you are compliant with your medication regime.
112Dr Thimmareddy assessed your risk of future sexual violence as low in the current setting of prison, however, as moderate risk in the community. This risk would further increase in the context of you forming a new relationship and particularly if you perceived a sense of rejection.
113Dr Thimmareddy states that 'the severity of sexual violence would likely be moderate to high, primarily based on [your] previous history and [your] attitudes which condone sexual violence.'
114Your counsel submits that your prospects for rehabilitation are demonstrated through your ongoing treatment with your psychologist at the Talk Shop, compliance with medication and having a stable relationship. She points to the delay in conclusion of these matters and the fact you have not reoffended since April 2021.
115My assessment is that your prospects of rehabilitation are negatively impacted by the following. You have not accepted responsibility in any way for this offending. You not only continue to deny it, but claim it was in effect a set up. In addition, your most recent description of your 2003 offending given to Dr Thimmareddy includes denying that you were aware of the age of the victim and that she only reported you to police after there was a disagreement about money and that you asked her not to call you anymore.
116Dr Thimmareddy opines that you have problems with intimate relationships, a lack of ability to empathise with others, that you engage in exploitative relationships for enhancing self-esteem, have an exaggerated sense of self-importance along with a sense of entitlement and sensitivity to rejection.
117In my view your risk of reoffending is better described as moderate when in the community and your prospects of rehabilitation in all the circumstances are guarded.
118I am just going to have a short break. Thank you.
(Short adjournment.)
Serious Offender Provisions
119Thanks very much.
120The Serious Sexual Offender provisions contained in Part 2A of the Sentencing Act 1991 are applicable in your case. As a result of your prior convictions from 2007, you will become a serious sexual offender when I impose imprisonment on Charge 1. On each of Charges 2 and 3 you are also to be sentenced as a serious sexual offender.
121In those circumstances I am to consider the protection of the community as the principal purpose of sentencing, and cumulation rather than concurrency is presumed to achieve that end.[10]
[10] Sentencing Act 1991, s 6E.
122Those provisions do not eradicate the need for me to give consideration to principles of either proportionality or totality, although they may be moderated to an extent.[11] The principle of totality requires me to determine the individual sentences and the level of concurrency or cumulation before standing back to look at the totality of the criminal behaviour and decide what is the just and appropriate sentence for all offending.[12]
[11] See e.g. Hoare v R (1989) 167 CLR 348; R v Connell [1996] 1 VR 436; Matheas v The Queen [2017] VSCA 330.
[12] R v Connell [1996] 1 VR 436.
Submissions as to sentence
123There is no dispute here that your offending must be met by a sentence of immediate imprisonment with a non-parole period.
Current sentencing practices
124I have had regard to current sentencing practices for this type of offending. To that end I was assisted by counsel referring me to a number of cases.[13] In considering sentencing practices for a standard sentence charge – here, the rape charges – I must only have regard to sentences previously imposed for those offences as standard sentence offences. That does not limit the matters I am otherwise required to or permitted to consider in determining the appropriate sentence for standard sentence offences,[14] nor is it intended to affect the approach to sentencing, known as instinctive synthesis.[15]
[13] DPP v Mohktari [2020] VSCA 161; Director of Public Prosecutions v Patil (a pseudonym) [2020] VSCA 337.
[14] Sentencing Act 1991, s5B(3)(a).
[15] Ibid, s5B(3)(b).
125In looking at any other sentence, whether for a standard sentence or otherwise, there are always similarities and differences between the offender and the offending. Ultimately, I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
Sex Offender Registration
126Before I turn to sentence, I will deal with the prosecution application pursuant to the Sex Offender Registration Act 2004 for a sex offender registration order to be made against you. The offences you were convicted of in 2007 were Class 2 offences. Because of this prior matter, the offences before me which are ordinarily Class 3 offences are elevated to Class 1[16]. That makes you an eligible offender, however, registration is discretionary.
[16] Sex Offenders Registration Act 2004, s 34(4)(a).
127That application is opposed by you.
128The relevant test for the making of such an order is contained in s11(3) of the SORA. I may only make an order if, after taking into account any matter I consider appropriate, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community.
129The test is a two-stage test.[17]
[17] Bowden v The Queen (2013) 44 VR 229; Sayer v The Queen [2018] VSCA 177.
130I must refuse to make an order if I am not satisfied beyond reasonable doubt that you will pose the relevant risk on your release from imprisonment based on what is presently known. I must be satisfied that the risk is 'real'. [18]
[18] Ibid.
131I am satisfied beyond reasonable doubt that upon your release from custody, even after this sentence, you will continue to pose a risk to the sexual safety of one or more persons, in particular, any future intimate partner. I reach that level of satisfaction on the basis of:
(a) the repetitive nature of your offending against Ms Nabila and the nature of your entitlement and attitude to her which I have described;
(b) the fact of your two subsequent convictions against her despite the existence of an intervention order;
(c) the nature of your prior criminal matter from 2007;
(d) the fact that you have repeatedly breached the previous SORA registration;
(e) the risk assessments made, in particular if you form any new intimate relationships;
(f) the gravity of likely harm; and
(g) the fact that Dr Thimareddy opines that if you were released in the community you would need to be managed assertively.
132That is not the end of the matter. Having reached that level of satisfaction, I must then determine whether to exercise my discretion to make an order in all the relevant circumstances.
133I must balance the circumstances and my satisfaction of risk against the purpose of the SORA scheme and the onerous obligations it will impose upon you. In that assessment I must take into account the degree of likelihood of the risk eventuating, the magnitude of the risk should it eventuate, and the likely consequences for any victim.
134Largely for the reasons listed above I am satisfied that there is a significant degree of likelihood that the risk will eventuate, particularly in the context of any intimate relationship and that the consequent harm would likely be high.
135For those reasons I intend to impose an order that you be registered under the Sex Offenders Registration Act 2004.
136The parties agree once I reach that conclusion, the mandatory period of registration required is for life.
Sentence
137Mr Mehrdad, the sentences I impose for your offending against Farah Nabila are as follows:
138On Charge 1 of rape you are convicted and sentenced to eight years and two months' imprisonment.
139On Charge 2 of rape you are convicted and sentenced to seven years' imprisonment.
140On Charge 3 of rape you are convicted and sentenced to nine years' imprisonment.
141On Charge 4 of common law assault you are convicted and sentenced to three years' imprisonment.
142On Charge 5 of make threat to kill you are convicted and sentenced to 18 months' imprisonment.
Orders for cumulation
143I declare that the sentence imposed on Charge 3 of nine years' imprisonment is the base sentence.
144I make the following orders for cumulation: 12 months of Charge 1, eight months of Charge 2, five months of Charge 4 and three months of Charge 5 are to be served cumulatively upon each other and upon the base sentence.
145The total effective sentence, therefore, is one of 11 years and four months' imprisonment.
Non-parole period
146I order that you are to serve a term of eight years' imprisonment before becoming eligible for parole.
Pre-sentence detention
147I declare that you have served 709 days on remand pending sentence and that this period is to be reckoned as having been served under this sentence.[19]
[19] Initial arrest on 2 August 2021. Bail granted on 8 September 2022. Remanded on 1 February 2024 following the jury verdict.
Serious offender
148I declare that you are a serious sexual offender in relation to Charges 1, 2 and 3 and that this status should be noted in the records of the court.
149Any issues to raise.
150MS MENEGAS: Just in relation to the declaration of pre-sentence detention, Your Honour.
151HER HONOUR: Yes.
152MS MENEGAS: The agreed sum is 725 days, not including today.
153HER HONOUR: 725. Alright, that's agreed Ms Do.
154MS DO: That is, Your Honour.
155HER HONOUR: Apologies for that error, I will amend that immediately. Thanks very much counsel for your assistance in this matter, and Ms Do, pass on my thanks to Mr Fisher for his assistance during the trial and the plea. Thanks very much.
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