Director of Public Prosecutions v Mirza (Sentence)
[2021] VCC 1181
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHARJEEL MIRZA |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2021 | |
DATE OF SENTENCE: | 20 August 2021 | |
CASE MAY BE CITED AS: | DPP v Mirza (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1181 | |
REASONS FOR SENTENCE
---
Subject:Criminal law - Sentence
Catchwords: Sexual assault – rape – vulnerable victims due to their intoxicated state – level of deception employed to gain trust and confidence – no criminal history – application for sex offender registration order
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Bowden v. The Queen (2013) VR 229
Sentence: Total effective sentence of six years’ imprisonment, non-parole period of three years and nine months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Pillai (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr L. Richter (plea and sentence) | Valos Black & Associates |
HER HONOUR:
1Sharjeel Mirza, you have pleaded guilty to three sexual offences arising from two separate incidents. In respect of offending committed on 10 March 2019, you have pleaded guilty to one charge of sexual assault contrary to s 41 of the Crimes Act 1958 (“the Act”) (charge 1) and one charge of rape contrary to s38 of the Act (charge 2). The second incident occurred on 12 July 2019 in respect of which you pleaded guilty to one charge of sexual assault contrary to s40 of the Act (charge 3).
2The maximum penalty for the offence of rape is 25 years’ imprisonment. The offence of sexual assault carries a maximum penalty of 10 years’ imprisonment.
3You were born in July 1983 in Lahore, Pakistan. You arrived in Australia in 2015 to study and work. At the time of the offending, you were 36 years old and married with two children. You have no prior criminal history.
Circumstances of offending
4The circumstances of your offending are detailed in the further amended summary of the prosecution opening dated 4 August 2021. This represents an agreed account of the events, a summary of which is as follows.
Offending on 10 March 2019
5I deal first with the offences committed on 10 March 2019.
6The victim of your offending on this occasion was Ebony Cohen[1], who was 19 years old at the time. On the evening of Saturday, 9 March 2019, Ms Cohen and her school friend planned to go out to meet their respective boyfriends. They met at a friend’s house at 7.30pm where they began drinking. Other than eating a few chips at the house, Ms Cohen had not had much to eat that day. She then drank four cans of UDL and had another sip of vodka before leaving that house at 9.30pm.
[1]A pseudonym has been used to prevent identification of the victim
7Ms Cohen and six other friends caught a train into the city. On the way in, Ms Cohen consumed a further two cans of UDL and had a few sips of Smirnoff Double Black vodka on the train trip. When they arrived in the city, Ms Cohen and her friends queued to enter a night club at approximately 11.00pm. Standing in the queue, Ms Cohen felt dizzy and had difficulty standing up.
8Inside the venue, Ms Cohen was visibly alcohol affected and vomited a number of times. Her boyfriend described her as being 'really drunk, quite unsteady and quite out of it'. Due to her level of intoxication, Ms Cohen was asked to leave the venue by security. Her boyfriend assisted her to leave the nightclub and together, they walked along Little Collins Street to King Street.
9At King Street, Ms Cohen sat down on the side of the footpath and vomited into the gutter. As she sat, her skirt had ridden up and her boyfriend could see her underwear beneath her skirt.
10At this point, you drove up alongside the couple in your car, a blue Toyota Corolla sedan. The car had an Uber sticker on the bottom left windscreen on the passenger side. However, you were not a registered Uber driver at the time. You approached Ms Cohen and her boyfriend and asked if they needed any help and offered them a bottle of water. You then retrieved some tissues and a bottle of water from the car. You offered to drive Ms Cohen home, but they declined saying she would be ill in the car.
11Ms Cohen was dry retching when you approached them again and repeated your offer to take Ms Cohen home. You told them you were an Uber driver and that you see these things all the time. You also told them you were studying to be a paramedic or were a paramedic. Ms Cohen’s boyfriend replied that Ms Cohen was also studying to be a paramedic. You asked where she was studying. You again offered to take Ms Cohen home, telling her boyfriend that he could trust you and that he need not worry about the vomit. Ms Cohen’s boyfriend said he would come with you and then return to the city, but you told him this would cost a lot of money.
12You told Ms Cohen’s boyfriend not to worry about booking through the Uber app, saying there were too many drivers in the area and another driver would not be willing to take her. You said they could pay you later. Ms Cohen’s boyfriend, and another male, then assisted Ms Cohen to get into your car. You told them she would be better off in the front seat as you could then see if she was going to be ill. Ms Cohen’s boyfriend sat in the back passenger seat.
13You drove them a short distance to a nearby 7-Eleven store where Ms Cohen’s boyfriend tried to get some plastic bags in case Ms Cohen was sick. You again told him that the return trip would cost a lot of money, quoting $70 to drive him back. As a result, Ms Cohen’s boyfriend decided to get out of the car and return to the nightclub after exchanging phone numbers with you for payment. You assured him that you could be trusted to drive Ms Cohen home.
14You drove Ms Cohen home along an unknown route. At some point on that journey, Ms Cohen remembers you grabbing her right arm with your left hand and placing it on your genitals. She could feel your erect penis, but is not sure whether it was over or under clothing (charge 1 – sexual assault). You then placed your hand on her right upper thigh, rubbing it with your hand. You then moved your hand to Ms Cohen’s vagina. Ms Cohen clearly remembers you inserting your fingers into her vagina. She tried to push your hand away and was screaming at you to stop. You screamed back at her, saying ‘no’. (charge 2 – rape). You left your hand on her genital area for a while. Ms Cohen yelled at you to let her out of the car, and tried to open the door, but it was locked.
15You drove Ms Cohen to her home address. Ms Cohen’s mother woke at around 1.00am on 10 March 2019 and went to her front door. You were standing at the door and told Ms Cohen’s mother that Ms Cohen was on the road and indicated where she lay. Shockingly, her mother found Ms Cohen lying face down on the road. With the assistance of Ms Cohen’s brother, her mother carried her inside to her bedroom. Ms Cohen was saying words to the effect, 'He’s very bad, he’s a bad person and he did bad things'. They called 000 and requested an ambulance.
16When the ambulance arrived, Ms Cohen’s mother saw that her daughter was no longer wearing any underpants. On the way to the hospital, Ms Cohen continued to repeat that words to the effect, 'He’s a very bad, he’s a bad person and he did bad things'.
17A friend of Ms Cohen’s called you on the mobile phone number you had given Ms Cohen’s boyfriend earlier in the evening. In that conversation, you denied the accusation of touching Ms Cohen and removing her underwear.
18On 26 March 2019, the police executed a search warrant at your home address. Your blue Toyota Corolla was parked outside the address, with an Uber driver sticker displayed on the passenger-side window. You were arrested and interviewed by police that day, during which you denied any sexual offending. You said the allegations were baseless and that you were extremely professional. You acknowledged knowing Ms Cohen was intoxicated, and that it was difficult for her to stand or sit properly. You described her as 'unconscious' and 'non-responsive'[2]. You said that she was sitting at a 90 degree angle with her legs wide apart and was not wearing anything. You said you placed her bag in front of her to hide ‘her private parts’[3]. You said you always ask passengers whether or not they want to lock their door, and it is up to the customer to do so[4].
[2]Record of Interview dated 26 March 2019, Q/A 51 and Q/A 289-290
[3]Ibid, Q/A 60, 62-63
[4]Ibid, Q/A 326
19Forensic samples obtained from both you and Ms Cohen were subject to examination. Analysis of the lower vaginal swab obtained from the complainant showed a partial, single source DNA sample which matched your profile. When compared to a database of known individuals, the expected frequency of observing such a result is approximately 1 in 2,301 males.
Offending on 12 July 2019
20I turn now to the circumstances of the offending on 12 July 2019.
21The victim of that offending was Ms Shirley Elliott[5] who was 26 years old at the time. She has no relationship with Ms Cohen; the two victims were unknown to you and to each other.
[5]A pseudonym has been used to prevent identification of the victim
22On the evening of Friday 12 July 2019, Ms Elliott attended a 30th birthday party. It was a fancy dress party and she had dressed for the occasion. At the party, Ms Elliott drank three glasses of champagne but had not eaten much that day. At approximately 9.15pm, Ms Elliott and some friends went to a bar in Brunswick where she had a further four drinks. Ms Elliott has no memory of leaving the 30th birthday party. At around 10.25pm, Ms Elliott arranged to meet another friend at a nightclub in Fitzroy and took a maxi-taxi there. CCTV footage from inside the taxi depicts Ms Elliott in an intoxicated state, lying on the centre console of the taxi, leaning against the window. The taxi driver thought Ms Elliott looked very drunk and was having difficulty balancing and walking.
23At just after 11.00pm, Ms Elliott was dropped off in Fitzroy. Nearby CCTV footage shows Ms Elliott get out of the taxi and fall to the ground. The taxi driver assisted her to sit on the footpath and left. Ms Elliott then attempted to order an Uber on her phone.
24The CCTV footage depicts you driving your blue Toyota Corolla past Ms Elliott shortly thereafter, before reversing and parking adjacent to her. Ms Elliott was still sitting on the footpath. Following a brief conversation, Ms Elliott entered the back seat of your car. Almost immediately, she is seen to get out of the back and move to the front passenger seat. You then drove off.
25Ms Elliott fell asleep in your car due to her level of intoxication. She woke to you placing your left hand on her right thigh. You then moved your hand inside her underpants and began to touch her clitoris. You rubbed her vagina for a few minutes while your other hand was on the steering wheel (charge 3 – sexual assault). The vehicle was moving at the time.
26In response, Ms Elliott pushed your hand away. She told you she needed to vomit as a way of getting out of the car. She ran from your vehicle crying. You ran after Ms Elliott and told her it was not safe for her to be on the street. You told her you would take her home and would not touch her. Ms Elliott has no recollection of getting back into your car or arriving home.
27At 4.00am on 13 July, Ms Elliott woke her boyfriend to tell him you had assaulted her. The next morning, Ms Elliott sent a text message to a friend telling her that she fell asleep in an Uber and woke to the driver touching her. She wrote that she ran down the street crying and that 'he pulled me back in his car' and that the driver said 'he wouldn’t touch me, he’d take me home'. Ms Elliott subsequently made enquiries of Uber regarding the vehicle.
28After speaking with a family friend who was also a police officer, Ms Elliott made a formal complaint to police on 16 July 2019.
29On 20 July 2019 you were again arrested and interviewed by police. You told police that Ms Elliott approached your 'Uber' and that you agreed to drive her if she paid you cash. You told her it would be easier for you if she sat in the front seat, in case she was ill[6]. You said you only touched her shoulder and her hands.
[6]Record of Interview dated 20 July 2019, Q/A 46
30Forensic samples from the underwear worn by Ms Elliott were analysed. A sample from the inside front panel of her underwear contained a mixed DNA sample which, when compared to a sample obtained from you, was described as being 100 billion times more likely if you were the contributor. The sample obtained from inside the crutch of the underwear was described as having a mixed DNA profile comprising two contributors, with your sample not being excluded. The expected frequency of observing such a result is approximately 1 in 2,301 males.
31During your interview with police, the police told you about the results of the forensic analysis. You were unable to explain how forensic samples linked to you were found on the inside of the complainant’s underwear. You maintained that what you told police was '100% truth'.
Offence gravity
32Rape is an inherently serious, violent act. The seriousness of the offence is reflected in the maximum penalty of 25 years’ imprisonment prescribed by Parliament. The objective seriousness of the offending is also informed by the nature and extent of the offending conduct, its frequency and the circumstances in which it occurs.
33Here, you preyed on two separate victims; both vulnerable due to their highly intoxicated state. You were aware of this in both cases. Once the victims were alone with you in your car, you took advantage of their intoxicated state for your own sexual gratification. You did so, despite acknowledging that Ms Cohen was ‘unconscious’ and ‘non-responsive’ in the car, and where Ms Elliott had fallen asleep in the passenger seat due to her level of alcohol consumption.
34Moreover, you engaged in a level of deception by pretending to be an Uber driver when you were not. In the case of Ms Cohen, your offending was preceded by your repeated offers of assistance, and by representing to her boyfriend that you were an Uber driver and had a background as a paramedic. Further, you repeatedly told Ms Cohen’s boyfriend that it would be expensive for him to travel with you and assured him you could be trusted to take Ms Cohen home. Your offending was a demonstrable breach of the trust and confidence you actively sought to engender in these two young people.
35There was certainly a degree of pre-meditation in your offending. You persisted in making repeated offers to take Ms Cohen home in your discussions with her and her boyfriend. In Ms Elliott’s case, you drove past her, and then reversed the car to pull up alongside her as she sat in the gutter, clearly intoxicated. Once the victims were inside your car, intoxicated and alone, you exploited their vulnerable state to sexually offend against them. This was not spontaneous offending. There is a concerning similarity in the circumstances of the separate instances of offending.
36The digital penetration of Ms Cohen occurred following the act of grabbing her hand and placing it on your erect penis. I cannot be satisfied, to the requisite standard, that you forced her to place her hand on your penis under, rather than over your clothing. However, my sentence must reflect the separate offending, while acknowledging these two acts occur within a relatively confined period. I accept the submission of your counsel that this sexual assault is a less serious example, or a moderate instance, of that offence compared to the more serious sexual assault involving Ms Elliott.
37However, the non-consensual digital penetration of Ms Cohen is clearly a serious example of this offence. It was a physical violation of a vulnerable young woman. It is an aggravating feature of the offence that when Ms Cohen tried to push your hand away and was screaming at you to stop, you did not immediately desist. Instead, you screamed 'No' in response, and left your hand on her genital area for a while.
38As highlighted by your counsel, your offending was not accompanied by threats, inducements or violence beyond that inherent in the offences. Here however, both victims were, by virtue of their state of intoxication, essentially powerless to prevent your offending. They were also reliant upon you to get home.
39The offending was not isolated, one-off offending. Prior to your offending against Ms Elliott in July 2019, you had ample time to reflect on the wrongfulness of your conduct and stop. This is especially the case in circumstances where you had been spoken to by police less than four months earlier about the sexual abuse of Ms Cohen. Given this, your offending against Ms Elliott was particularly brazen. Your culpability increased with this subsequent act of offending. I regard your moral culpability for the offending as significant.
40I have had regard to the victim impact statement provided by Ms Elliott. Although she bears no responsibility for your offending, she says that immediately after the incident she felt disgusted and ashamed of herself for not being more vigilant. The trauma and heightened anxiety she now experiences makes everyday activity difficult. She now avoids share-rides altogether. At times she struggles to get out of bed and is anxious about leaving her home. The offending undermined her sense of safety in the community and impacted significantly on her ability to trust others. It placed strain on her relationship and her ability to be intimate.
41Ms Cohen elected not to make a victim impact statement, but it is not disputed that your offending would have been a traumatising experience for her. The harm caused by sexual offending of this nature is well recognised.
Personal circumstances
42I turn now to discuss your personal background and circumstances.
43You are now 38 years old. Both you and your wife were born and raised in Lahore, Pakistan. You came from a strict, yet loving and close family. You performed well academically and worked as a tax lawyer in Pakistan. Together with your wife, you have two children, now aged 10 and 12 years. After living in the United Kingdom for a period where you worked in accounting, in 2015 you travelled to live in Australia on a graduate 485 visa. Your family followed you here in 2016. On your arrival, you studied accounting at Latrobe University and MIT, completing your degree in 2017.
44You and your wife left Pakistan to give your children the opportunity of a better life in Australia. There was also significant acrimony within your family over your decision to marry your wife. You had been expected to enter an arranged marriage, but contrary to the wishes of your parents, you married your wife in 2019. Your family remained opposed to the marriage and treated your wife poorly, which was another trigger for your decision to leave Pakistan.
45Whilst studying in Australia, you also worked as a cleaner. Once you completed your university studies, you applied for jobs in accounting and worked as a share driver from 2017 to support your family. At one point, you had worked as a registered Uber driver but had ceased to be registered with Uber at the time of the offending. You were, however, registered with other share drive companies. Your wife was employed as a baker. The family was under significant financial stress at this time. You worked nights and cared for the children during the day, while your wife worked.
46You have no history of drug or alcohol abuse or of poor mental health. You instruct your legal representatives that you are, however, depressed and are medicated for depression. However, no psychological material was filed on your behalf, that may have shed further light on this aspect of your personal circumstances.
47As stated, you have no prior criminal history. You continue to have the support of your family. In a letter written to the Court, dated 30 July 2021, your wife outlines the daily struggle she has endured since you were placed in custody and the battle she faces in clothing, feeding, schooling and caring for the well-being of your children. In addition, you wife says she and the children lost many of their friends when the nature of your offending became known. This has been distressing and humiliating for them. Despite these very real challenges, your wife says she still supports you. She also says you are sincerely remorseful for your offending and that it is inconsistent with the man she married thirteen years ago and who is the father of her children.
48I have also received a large number of character references and certificates on your plea. The references come from a range of family members and friends, many of whom have known you for many years. They speak of you as a person who is polite, respectful and hard-working. You are known to be charitable and generous to others. Those close to you describe you as a committed father. They express their shock and disbelief at your offending and speak of your remorse, particularly for the predicament your family find themselves in. Many speak of the significant emotional and financial hardship your wife and children are now experiencing.
49Having regard to this material, and the absence of any prior criminal history, I am satisfied that you are a person who has otherwise been of good character.
50There are other matters that are relevant in mitigation of your sentence.
Plea and remorse
51Significantly, your matter resolved to a plea of guilty on the first day of the committal scheduled in June 2021 and notably, prior to the cross-examination of witnesses.
52Importantly, your plea spared the victims from the ordeal of having to give evidence. This is particularly significant in a case such as this. Your plea also saved the court and the community the cost and time of running a trial and has heightened utilitarian benefit given the current delay associated with trials in the wake of the coronavirus pandemic. A plea at this time, and in these circumstances, carries significant weight in mitigation.
53At the commencement of your plea, your counsel Mr Richter, tendered a letter of apology you had written to the Court dated 3 August 2021. In that letter, you acknowledge the pain and trauma your offending caused the victims. You apologise to the victims and express your regret for the impact of your conduct. Your expressions of remorse, both in this apology and to those who provided references on your behalf, are consistent with your plea of guilty. This was conceded by the prosecution at the plea hearing. I accept that your plea is accompanied by genuine remorse for your conduct, and I moderate your sentence to reflect that fact.
Delay and burden of imprisonment
54You were arrested and remanded on 20 July 2019. A committal hearing listed for October 2020 was adjourned to 1 October 2021 due to the pandemic. The matter resolved on that date. You have now been remanded in custody for over two years. This delay has meant these serious charges have been hanging over your head, leaving you in a state of uncertainty for that period. I have taken the delay, especially that occasioned by the pandemic, into account in moderating the sentence to some extent.
55It is notable that much of your time in custody has run parallel with the pandemic. The custodial setting has been modified to manage this, and this has impacted on all prisoners. For you, these restrictions have added considerably to the burden of your time in custody. Significantly, you have not seen your wife or your children in person since March 2020. Prior to that time, you were seeing your children every weekend for four to six hours. I accept the submission of your counsel, Mr Richter, that this is a serious deprivation for you.
56Following your remand, your visa was cancelled. You are now at appreciable risk of being deported. Your counsel acknowledged that the court cannot act on the basis of executive action yet to be taken. However, the fact that you will serve your term of imprisonment in the expectation of being deported upon release will be a burden of your time in custody beyond that experienced by others. I accept the submission of your counsel that your time in custody will be marked by the anguish of considering whether your actions have cost not only you, but your family, the opportunity of continuing to live in Australia.
57For you this uncertainty is two-fold; there is the prospect that you alone will be deported and thereby permanently split from your family or alternatively, that not only you but your wife and children will also be deported. Either scenario is difficult. Your children are fluent in English and have been schooled in Australia. If your wife is deported she will return to the volatile situation faced with your family. Although your counsel did not argue your family’s circumstances are exceptional, I accept that the anguish you will experience in being responsible for the situation your family now finds itself in, including the financial difficulties they now confront, is an added burden of your imprisonment.
58The additional burdens associated with your time in custody operate to moderate the sentence I would otherwise impose.
Prospects of rehabilitation
59Whilst in custody, you have undertaken numerous courses directed at your general rehabilitation[7]. In doing so, you have demonstrated a preparedness to advance your rehabilitation. When considering your future prospects, this fact combined with your plea, absence of prior criminal history and indications of remorse are all clearly relevant. Against this however, while you recognise the seriousness of your conduct, there is no explanation for why you behaved in this way on two separate occasions. Your letter of apology reflects a degree of insight into the impact of your offending on the victims, but does not advance any explanation for the offending behaviour.
[7]Exhibit 3
60There is no expert report or opinion that addresses the question of risk of reoffending. At the conclusion of the plea, I raised the prospect of obtaining a Forensicare report to assist in my assessment of risk, but this was forcefully opposed by your counsel. Whilst you are not penalised for taking this position, I do not have the benefit of expert evidence regarding risk or your prospects of rehabilitation.
61The nature of your offending will warrant you being assessed for, and if found suitable, completing a sex offender treatment program. This will be an important aspect of addressing future risk. I also acknowledge the family support available to you upon your release. Balancing these factors against the concerning circumstances in which this offending occurred, as best as I can presently assess, you have moderate or fair prospects of rehabilitation.
Other sentencing considerations
62I accept that imprisonment will have a deterrent effect on you personally, particularly as this is your first time in custody. However, there remains a need for the sentence to operate to deter you from future sexual offending and for the sentence to operate to protect the community. This was accepted by your counsel in circumstances where there were two instances of sexual offending against two unrelated victims.
63The paramount sentencing considerations in this case are general deterrence, just punishment and denunciation. In sentencing you, my sentence must operate to deter others who may be minded to take sexual advantage of women who are vulnerable due to intoxication or otherwise, and to clearly denounce such conduct. In cases such as this, an immediate sentence of imprisonment is warranted.
64In addition to being a Category 1 offence which mandates imprisonment, the charge of rape also attracts the standard sentencing provisions of the Sentencing Act 1991. The standard sentence is one where the Sentencing Act 1991 specifies the appropriate sentence for an offence in the mid-range of seriousness, taking into account only the objective factors affecting the relative seriousness of the offence. I have referred to the objective gravity of your offending earlier in my reasons. The standard sentence for rape is 10 years’ imprisonment. As with the maximum penalty of 25 years imprisonment, the standard sentence is one of the factors relevant to the sentence I impose.
65The only previous sentences to which I may have regard when considering current sentencing practices are those that have been imposed under the standard sentencing scheme for the offence of rape. I have taken into account the sentences to which I was referred by both the prosecution and defence[8]. In addition, I am required to fix a non-parole period which is at least 60% of the total effective sentence, unless it is in the interests of justice not to do so.
[8]DPP v Babar [2021] VCC 180 (26 February 2021); DPP v Abdi [2020] VCC 1668 (15 October 2020); DPP v Singh [2019] VCC 1484 (11 September 2019) and DPP v Palliyaguruge [2021] VCC 958 (15 July 2021)
66The authorities make it clear there is no distinction in the categorisation of rape whether it be digital or otherwise. There is no hierarchy of seriousness for penetrative offences. While digital rape does not involve the risks associated with penile rape, such as pregnancy and sexually transmitted diseases, it is not necessarily less serious. The digital rape in this case falls to be assessed as a serious instance of this type of offending given the vulnerability of the victim due to her level of intoxication, alone with you in the car. You took advantage of that vulnerability once she was alone with you, and after you encouraged her to enter your car on the basis you were an Uber driver and could be trusted to take her home safely.
67Pursuant to s6B(2)(a) of the Sentencing Act 1991, you are to be sentenced as a serious sexual offender on Charge 3 – the charge of sexual assault. Section 6D of the Sentencing Act 1991 requires that the protection of the community be the principal purpose of sentencing for that offence. The prosecution does not seek a disproportionate sentence to meet that objective. In the circumstances of this case, I do not consider that a disproportionate sentence is warranted.
68The serious sex offender provisions also dictate that any term of imprisonment imposed on Charge 3 be served cumulatively, unless otherwise directed by the Court. Whilst I must still have regard to the sentencing principle of totality, in doing so I have had regard to this requirement.
69The instinctive synthesis involved in sentencing requires that I balance each of the factors to which I have referred. The individual sentence I am about to impose on the charge of rape (charge 2), falls short of the standard sentence due to the mitigating effect of the other factors I have detailed and which I am also required to take into account in sentencing you. These include your plea, the absence of prior criminal history and the burden of imprisonment in the particular circumstances of your case.
70Balancing these factors, and guided by the maximum penalty for each of the offences, and the standard sentence for the offence of rape, I sentence you as follows:
71On Charge 1 – sexual assault, you are convicted and sentenced to 14 months’ imprisonment;
72On Charge 2 – rape, you are convicted and sentenced to four years, eight months’ imprisonment;
73On Charge 3 – sexual assault, you are convicted and sentenced to two years’ imprisonment. You are sentenced as a serious sexual offender on this charge.
74Charge 2 is the base sentence. Some degree of cumulation is warranted in respect of Charge 1 whilst acknowledging this offence arose out of the single episode of offending on 10 March 2019. I order that four months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. A more significant degree of cumulation is warranted on Charge 3 to reflect this separate instance of offending involving a second victim, and to reflect the fact that you are to be sentenced as a serious sexual offender on that charge. I order that 12 months’ of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charges 1 and 2.
75This gives a total effective sentence of six years’ imprisonment. In my view, a lengthy period on parole is appropriate in your case. I fix a non-parole period of three years, nine months before you become eligible for parole.
76I order that 762 days of pre-sentence detention be reckoned as already served pursuant to s18 of the Sentencing Act 1991.
77Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty but been found guilty following a trial, the sentence I would have imposed would have been seven years, and 6 months’ imprisonment, with a non-parole period of five years, two months’ imprisonment.
78I turn now to the sex offender registration application. The offence of rape is a Schedule 3, class 3 offence pursuant to s8 of the Sex Offenders Registration Act (‘the SORA’) where it is committed by a person who is a serious sexual offender for the purposes of this provision[9].
[9]See s8(3) of the SORA
79The prosecution has applied for a sex offender registration order pursuant to s11 of the SORA. The court has a discretion to make such an order pursuant to s11(3) of the SORA, which provides:
The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
80The prosecution relies on a combination of factors in submitting you pose a risk to the sexual safety of women who are in a similar state to the victims, namely:
· the gravity of the offending, particularly where two victims were offended against in similar circumstances;
· that the offending was predatory;
· the victims were vulnerable due to their level of intoxication and, in the case of Ms Cohen, her youth;
· the offending occurred in circumstances where you were purportedly working as a driver, but were not registered to work as an Uber driver and accordingly was a breach of trust;
· the offending was repeated and serious; and
· the absence of material to assist in addressing risk.
81The application is opposed. On your behalf, it was emphasised that you have no prior criminal history, that in pleading guilty you have accepted responsibility for your conduct and expressed remorse and that you have the ongoing support of your family and good prospects of rehabilitation in light of the weighty character reference material. In the circumstances, the defence submits there is insufficient evidence upon which to find the requisite risk to the safety of others exists.
82The operation of s11(3) was explained by the Court of Appeal in Bowden v the Queen[10]. The inquiry whether to make a registration order is a two-stage process. The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety; being a risk that is real rather than fanciful. The evaluation of risk is directed to the risk upon the offender’s release into the community, assessed by what is presently known. It is only if the court is satisfied that the requisite risk exists, that the second question arises – whether the order should be made in all the relevant circumstances. This involves a balancing exercise of the magnitude and nature of the risk and the degree of likelihood of risk eventuating and the gravity of the harm, balanced against the serious consequences for the offender.
[10] Bowden v The Queen [2013] VSCA 382; (2013) 44 VR 229
83Turning to the first question of risk posed to the general safety of one or more persons or of the community.
84I accept that the risk posed is to be informed by factors personal to you, including the absence of priors and your acknowledgment of the offending through your plea. The remorse you have demonstrated for your offending is also relevant. Against that however, is the fact that this was serious sexual offending against two vulnerable women on separate occasions. As stated, you preyed on both women when they were clearly intoxicated. Most significantly, the serious sexual assault perpetrated against Ms Elliott occurred a matter of months following your arrest and questioning by police in respect of the sexual offending against Ms Cohen. This did not deter you from further sexual offending.
85There is no expert opinion evidence that informs my assessment of risk. My assessment is based solely on the evidence before me. Whilst I anticipate that you will undertake a sex offender program whilst in custody, there is no material before me that assists in determining the extent to which, in your case, this will ameliorate risk. Given the gravity and circumstances of your offending, whilst taking into account the matters raised on your behalf by counsel, I am satisfied the evidence establishes the risk you pose to the sexual safety of women in the community who may be in a similar state to the victims is more than fanciful. It is a real risk.
86In relation to the second stage of the test, I have had regard to the fact that the registration requirements include an obligation to report on an extensive range of matters on an annual basis, including the name of each child with whom you have contact and clubs or organisations where children participate in activities. For a father of school-aged children, this is a significant consequence of being required to submit to the registration scheme. Balanced against that however, is the nature of the risk and the magnitude of the harm to victims of sexual offending when they are a similar position to the victims in this case. As the victim impact statement of Ms Elliott attests, the impact of sexual offending on victims is usually profound and wide-ranging. The purpose of registration is to reduce the likelihood that you will reoffend. Based on these various factors, I am satisfied it is appropriate to grant the application for registration.
87Pursuant to s34(3) of the SORA, where the two offences committed on 10 March 2019 arise from the same incident, they are treated as a single offence. Pursuant to s34(4), Charge 2 is deemed to be a Class 1 offence and Charges 1 and 3 are deemed to be Class 2 offences. Where at least one of those offences is a Class 1 offence, then the two or more offences are treated as a single Class 1 offence pursuant to s34(3)(b) of the SORA. Here therefore, Charges 1 and 2 are deemed to be a single Class 1 offence. Charge 3 is a Class 2 offence. Therefore, the reporting period pursuant to s34(1)(c)(ii) of the SORA is for life.
88Finally, I make the forfeiture order sought by the prosecution, noting that it is not opposed. Mr Richter, in relation to the sex offender registration order, I will give you an opportunity to remain on the link to your client, to explain the effect of that order. What I propose to do is have the order sent through to the prison, so that it can be signed and returned. That will be arranged through my associate.
89MR RICHTER: Yes Your Honour.
90HER HONOUR: Are there any custody management issues that you would like recorded, beyond those that were identified? This is his first time in custody.
91MR RICHTER: Yes.
92HER HONOUR: Do you know the medication he is on for depression?
93MR RICHTER: I don't, but since he's already at Hopkins, which I anticipate is where he will remain, they have his medication and care in hand.
94HER HONOUR: All right.
95MR RICHTER: Yes.
96HER HONOUR: Are there any other matters counsel wish to raise in relation to the matter?
97MR RICHTER: Not from me, Your Honour.
98MS PILLAI: Your Honour, there is a forfeiture order that was filed with the court. It's in respect of a mobile phone - - -
99HER HONOUR: Yes, I indicated that I had grated that, noting it was not opposed.
100MS PILLAI: Oh, thank you. Thank you, Your Honour.
101HER HONOUR: Thank you. Are there any other matters?
102MS PILLAI: Not at this stage, Your Honour. I just - no.
103HER HONOUR: All right. Can I thank counsel again for their assistance and I remind those members of the media present that any reporting must comply with the relevant provisions and ensure that there is no identification of the victims in the reporting that is undertaken. Thank you, we'll adjourn the court.
104MR RICHTER: As Your Honour pleases.
105MS PILLAI: As Your Honour pleases, thank you.
106- - -
2
6
0