Director of Public Prosecutions v Mokhtari

[2019] VCC 205

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02322

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALIMADAD MOKHTARI

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2019
DATE OF SENTENCE:	27 February 2019
CASE MAY BE CITED AS:	DPP v Mokhtari
MEDIUM NEUTRAL CITATION:	[2018] VCC 205

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW SENTENCE

Catchwords:             False imprisonment – rape – sexual assault – vulnerable victim – serious example of offending – serious sex offender – self-induced intoxication – forethought to offending – plead not guilty – guilty at trial – term of imprisonment – non-parole period.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Churchill and Ms S Clancy	OPP
For the Accused	Mr P Bloemen	Ann Valos Criminal Law

HIS HONOUR

1Alimadad Mokhtari, on 3 December last year, after a 13 day trial you were found guilty by a jury of four charges of rape, one charge of false imprisonment and one charge of sexual assault.  You were acquitted of two charges of rape and two charges of sexual assault.  The applicable maximum penalties are: 25 years' imprisonment for rape, 10 years' imprisonment for false imprisonment and 10 years' imprisonment for sexual assault.

2You were charged with offences arising from an incident that occurred in the early hours of 6 May 2016.  The victim was a 23 year old Lithuanian national who had arrived in Australia with her boyfriend in April 2016 to backpack around the country.

3The victim and her boyfriend had based themselves in Goondiwindi, Queensland, and travelled from there to other places.  The victim placed an advertisement on Gumtree stating that she was looking for volunteer work.  She outlined her previous work experience and that she was a third year university student studying psychology.

4You responded to the victim’s advertisement asking whether she would like to work as a “Sales Manager”.  You then telephoned the victim and offered her a Sales manager job in Melbourne for a company that sold tyres.  You had told the victim that you would provide her with accommodation where other employees resided.  The victim accepted your offer, and purchased an airline ticket to travel to Melbourne to commence working for you.  You then told the victim that she would not be able to commence work until the next week, and that the accommodation was not ready.  After some discussion, you said that you would obtain a motel room for her instead.     

5You collected the victim from Melbourne Airport on 4 May 2016 and took her to the motel in Keysborough.  You told her that she would need to stay there for a few nights until the other accommodation was ready.  The room contained a double bed, a single bed under a window and an attached bathroom.

6Once in the room you offered the victim an alcoholic drink, which she refused.  You then discussed the job opportunity and left.

7You returned to the motel the next morning and spent time with the victim, explaining the business and what her role would involve.  During the day, you purchased food for the victim.  When you returned to the motel room, you again offered her an alcoholic drink which she again refused.  The victim stated she thought it was strange that you had offered alcohol on two occasions.

8Later that night you went with the victim to again purchase food.  You told her that your girlfriend “Saro” was coming over so you returned to the motel.  The victim saw you smoke a substance in a glass pipe, which you told her was “Indian stuff”.  It was in fact methylamphetamine that you brought with you to the premises, along with an ice pipe.  You then asked the victim to write a statement to the effect that she was not working for you, but was volunteering.  You also took photographs of her passport and visa.

9It became late and the victim told you that she wanted to sleep.  You were trying to make contact with “Saro” and appeared distressed.  You were frustrated that you were unable to contact “Saro”.  You decided that you would look for “Saro” but were unable to locate your car keys.  I am unable to determine whether “Saro” was a deliberate fiction of yours created as a device to gain your victim’s confidence, or otherwise.  What I am satisfied of, is that there was no genuine job offer – instead you had engaged in an elaborate ruse designed to isolate your victim and attempt to ply her with alcohol and methylamphetamine both of which you had brought to the premises, in the hope that you would obtain sexual gratification.

10The victim changed into her pyjamas and got into bed.  You lay down on the bed next to the complainant.  She angrily asked you what you were doing and you told her that you were upset and needed her to help you.  The victim then stood up, told you that she did not like you behaviour and that she had a boyfriend.  She then put on her cardigan and went outside to have a cigarette. You followed her out and apologised for your behaviour.  The victim made it clear that the relationship was a work relationship only.

11The victim then went back into the motel room.  Seconds later, you grabbed her and pushed her onto the bed, holding her down with your body weight.  The victim resisted and started to scream, but you placed your hand over her mouth and told her that you would beat her if she screamed.  This is the commencement of Charge 1 – false imprisonment.

12The victim continued to struggle with you in an attempt to escape.  Over the course of the night the victim tried to think of a way to escape.  You had threatened her with violence at several occasions to ensure that she did not yell out for help.  At one stage you told the victim that if she went to the police they would ask her what she was doing in a motel room with one man.  The victim said she was scared and believed that you would not let her leave the room.

13You then started to pull off the victim’s clothing.  She pleaded with you and asked whether you were going to rape her.  You pulled away her night dress and began to kiss and suck her breasts.  This is Charge 2 – sexual assault. Throughout this, the victim pleaded with you to stop and told you that she did not want this.  You ignored her pleas.

14You then pulled down the victim’s underpants.  She repeatedly asked, “What are you doing?”  You then licked inside the victim’s vagina, at one stage using your fingers to separate the lips of her vagina (Charge 4 – rape).

15You then removed all of the victim’s clothing so that she was completely naked.  The victim continued to beg for you to stop.  Her evidence was that she told you to kill her then, if that is what you intended to do.

16You then dragged the victim and put her on the smaller bed under the window.  You jumped on top of her.  You began to lick her entire vagina and rub your penis over her body.  She repeatedly told you to stop (Charge 5 – rape).

17The victim observed that at this stage you were paranoid about sounds and movements.  You told her to look out the window and that there was an animal outside.  The victim decided to play along with your delusions in an attempt to placate you.  The complainant said in her evidence that during this time she was continually thinking of a means to escape, but was not able to.

18You subsequently pulled the victim on the bigger bed.  You jumped on top of her and rubbed your penis in the lips of her vagina.  You were making car noises.  You were not able to fully penetrate the victim’s vagina as you were unable to obtain an erection (Charge 8 – rape).       

19At one stage the victim was laying on the bed on her stomach.  You were lying on top of her.  You subsequently put your finger inside her vagina (Charge 10 – rape). 

20The victim took an opportunity to escape when you were not directly holding her.  She ran for the door.  You followed her and grabbed her.  The two of you grappled on the floor.  During the struggle, the complainant pushed her fingers into your eyes and mouth.  You yelled out for her to stop and let her leave.  You threw some clothes at her and she left the motel room.

21The victim then ran from the motel room and tried to wave down traffic whilst naked.  No vehicles stopped for her, so she put her clothes on and was able to stop a vehicle.  The driver of the vehicle then telephoned triple zero in order to notify the authorities.

22Police subsequently attended at the motel and arrested you.  You were still in the motel room when they attended.  You were interviewed by police on
7 May 2016 and denied the allegations that were put to you, although you agreed that you met the victim on Gumtree and had spent the night with her.  You stated to police that the complainant gave you a tablet, and then another, from which point forward you had no recollection.  You gave an account of waking in a state of undress.  You made absolutely no mention of smoking methylamphetamine in an ice pipe during your interview.  This omission was telling.  At trial there was no challenge to the complainant’s evidence regarding your smoking a substance in a pipe, instead it was put to the complainant that she smoked ice as well, which she denied.

23Police searches of the motel room revealed a glass pipe as described by the victim.  Also located was a man’s shirt containing two small zip lock bags, one containing Viagra tablets and one containing methylamphetamine.

24As was observed during your Plea, I have no difficulty, in view of all of the evidence, including the drugs located at the scene, the presence of alcohol, and the evidence at trial of your former business partner, that you embarked on an elaborate plan to lure the victim to Melbourne and have access to her in the motel room in anticipation of making sexual advances towards her.  All of the circumstances point to such a ruse – in particular the methylamphetamine and Viagra found in your shirt.

25The victim was alone and isolated.  You had created a situation and manipulated it in a way that enabled you to force yourself upon her when your sexual advances were rebuffed.

Offence Gravity and Objective Seriousness

26There are many features of your offending that make these offences very serious examples of the crimes of false imprisonment, rape and sexual assault.

False Imprisonment

27Your unlawful imprisonment of the victim commenced with you pushing the complainant onto the bed and holding her with the weight of your body.

28You threatened to beat and punch her if she resisted or cried for help.

29You imprisoned her for approximately six hours.  You man-handled her and threatened her with violence on several occasions.  On one occasion you said you would ‘put a towel in her mouth and no-one could hear you and I will beat you ‘til death.’

30Your words and conduct were the means through which you imprisoned the victim – they are in effect the particulars of the offence.  She suffered numerous injuries during the imprisonment as described by Dr Marr and depicted in the photographs tendered at trial.

31The ordeal of being imprisoned by you ended in violence.  You dragged the complainant to the ground as she tried to escape.  You pushed your fingers into her mouth and into her throat.  The victim started to choke and bit down on your fingers.  She placed her fingers into your mouth in an effort to fight you off – you bit her fingers.  She then gouged at your eyes.  You let her go. She fled, naked, with her clothes bundled in her arm, and eventually flagged down a passing motorist.

32This final explosion of violence by you demonstrated the lengths you were prepared to go to in order to continue her captivity.

33These facts constitute a very serious example of the offence of false imprisonment.  During the imprisonment you raped and sexually assaulted the complainant – who was begging you to stop throughout.  The fact that you committed sexual offences during the period of false imprisonment is a relevant aspect of the objective seriousness of this offence.  It is also relevant when considering the offences of rape and sexual assault that you imprisoned the victim in order to perpetrate the offences.  There is an obvious overlap of criminality in these circumstances and I have been careful not to punish you twice for the same criminality.

Rape and Sexual Assault

34The offences of rape and sexual assault were committed on a young woman you knew to be in an extremely vulnerable position.  You knew her presence was due entirely to her falling victim to your ruse of prospective employment.  She was a young woman in a foreign country who had left her boyfriend in Queensland to come to Melbourne, where she had no close contacts.

35You knew she was your prisoner.  You threatened her.  She pleaded with you not to rape her.  At one point, in the bathroom prior to the incidents of rape you stand to be sentenced for, she stated to you:

‘You are raping me.  If you want to kill me, please kill me now because I cannot stand this.’

36This was predatory, violent and depraved behaviour.  You showed a complete disregard for the victim’s fundamental rights as a human being.  At no stage did you respond to her obvious distress and trauma in anything other than a base and grossly callous manner.

37The victim impact statement describes the severe and far-reaching impact your crimes have had upon her.  Her psychological well-being, her enjoyment of life and her relations with others are all damaged significantly.  The terror and gross violation you subjected her to remains with her daily.  She feels broken.  She feels she is a different person.  She has lost confidence and self-belief.  She suffers panic attacks and severe anxiety.  She is depressed.  The world appears to her to be a very different place to what it did before.  You did this to her.

Personal Circumstances

38You were born in a small village of Urzgan in Afghanistan.  You are 42 years of age.  You had six years of schooling up to the age of 15 in Afghanistan.  I’m told you achieved partial literacy in Dari.

39As a child you worked on your family’s farm.  You later worked as a tailor.  You also did factory work and worked in transportation.

40For a period of seven years you worked within the United Nations Special Forces in Afghanistan.  I was told you were a commander.  Your primary role was to protect a United Nations base.  A key part of your role was based upon your ability as an Afghani to identify those troops which could be trusted as distinct from potential infiltrators or insurgents.

41You were required to select and guarantee the bona fides of the local troops associated with the UN.  You would do this by selecting those whom you knew personally or were at least aware of their background.

42You came to Australia as a refugee in 2012.  You travelled via Pakistan and met up with people smugglers making your way via Malaysia, ultimately making contact with Christmas Island.  You were assisted in your efforts to achieve refugee status due to you having been a member of the coalition forces in Afghanistan.  You received a support letter from the coalition forces to assist your application.  Your expectation had been that in Pakistan you may have been able to migrate to Australia directly however due to the Taliban presence in Pakistan and your role with the coalition forces placing you in a precarious situation, hence your resorted to the use of people smugglers.

43Your family remained in Pakistan.  They joined you in Australia at a later time as refugees.  You have since obtained permanent residence.  You have intended to apply for citizenship however this has not been able to be progressed due to these proceedings.

44Your family members have applications for citizenship on foot.  Your youngest child was born in Australia.

Family

45Your father died in late 2016 after suffering a stroke.  You feel guilt due to the fact that he was aware of the allegations against you prior to his stroke and was no doubt distressed.  Your mother is aged 72.

46Your wife was present during your plea hearing, as were some of your children.  You and your wife have six children ranging in ages from 20 years of age to 12 months old.  I have no reason to regard your role as husband and father as anything other than positive prior to this episode of offending and its effects.

Work and life in Australia

47In Australia you have worked as a truck driver and have also showed some entrepreneurial talent running the businesses; Durable Tyres, ORZ Pty Ltd and Unik Builders.  Your wife is currently on Centrelink payments.  She will have great difficulty making payments on the family home.

48I was told that you have assisted a number of your Afghani military colleagues in their efforts to migrate to Australia.  You have written letters in support and have also been heavily involved with the Afghani community in Dandenong, in particular as a guarantor for rental agreements entered into by those you have assisted in coming to Australia.  You played a leading role in the establishment of the Rasul Akram Association, a community centre in Dandenong, in 2016.

49You have no prior convictions nor are there any subsequent matters known against you.  Absent this offending there is much in your personal circumstances and history that is creditworthy.

50It is difficult to understand how someone who has no doubt known fear, isolation and vulnerability – such as yourself – could inflict such crimes on an innocent other.  It also difficult to reconcile a community minded father of six with the self-indulgent, drug affected, violent sex offender who committed these crimes.  No explanation was offered, as it appears you maintain your innocence, perhaps maintaining the absurd fiction that it is you who was the innocent victim in this matter at the hands of the victim.  Perhaps the presence of Viagra, in the context of the evidence relating to your failed efforts to gain an erection, together with methylamphetamine, provide some clues as to what was driving your criminality – however this is mere speculation.  I must sentence you on the evidence and the objective facts.

Remand

51You were remanded at the conclusion of the trial.  This is your first experience of custody.  You first went to trial on these matters on 26 February 2018.  The jury in that trial were discharged without verdict on 19 March 2018.  The trial before me commenced on 12 November 2018 and you were convicted of the matters now before me on 3 December 2018.

52During your period on remand you have been in custody at Fulham.  I’m told there is only one other Dari speaker there.  Understandably you are feeling quite isolated.  Your wife and children have been visiting every two weeks or so.  You have been studying English.

53The strain on you in custody arising from your separation from your family and your concern for their welfare in your absence is a matter I was asked to take into account as it will weigh upon you during the term of imprisonment I impose.  As I observed during your plea hearing, it is a tragedy for your wife and children that you committed such vile and serious offences and now face a lengthy term of imprisonment.  You let them down in spectacular fashion from the moment you hatched your plan to use ice and alcohol on a young unsuspecting backpacker, from a non-English speaking country, as a prelude to your sexual advances.

54Whilst I accept your concern for the welfare of your family whilst you are incarcerated is real and it will weigh upon you, I give it little weight in the sentencing exercise in this case.

55I take into account the uncertainty regarding your future in this country, given the prospect of deportation, as a factor which will weigh heavily upon you for the duration of your sentence.

Effects of Methylamphetamine

56It was submitted on your behalf that the evidence at trial provided a basis for concluding that you were in a state of drug-induced psychosis during the offending.  The evidence does not go so far.

57There was evidence during the trial that provides a basis for accepting that it was likely that you were hallucinating at several points and were disoriented.  The evidence is unclear as to the extent of your intoxication and there was no expert evidence relied upon other than the Prosecution witness at trial,
Dr Gaya.

58Dr Gaya gave evidence that experiencing hallucination could be a symptom of methylamphetamine intoxication.

59What is clear on the facts is that you acted in a distinctly conscious and deliberate fashion throughout, and that your words and actions in the lead up to the offences of rape left no doubt as to your intention to imprison the complainant and penetrate her without her consent.  At no stage during the ordeal, even at the point where you were addressing the complainant as ‘Saro,’ were your actions consistent with a belief in consent that was unreasonable due to intoxication or drug induced psychosis.

60There is no doubt you were severely intoxicated some hours into the offending, and the disinhibiting effects of the drug were probably present from the outset of your criminality.  I regard the disinhibiting effects of the drug as going some way to explaining why a man in your circumstances would commit such heinous crimes.

Serious Sexual Offender

61You are to be sentenced as a Serious Sexual Offender on Charges 5,8 and 10. I direct, pursuant to section 6F of the Sentencing Act 1991, that your status as a Serious Sexual Offender in respect of those charges be entered into the records of the Court.

62I was not asked to pass a disproportionate sentence in order to give effect to the protection of the community pursuant to s 6D and I do not do so.

63In respect of Charges 5, 8 and 10 there is a presumption of cumulation by virtue of s6E, which I take into account.  I have also applied the principle of totality regarding the breadth of your offending.

64Whilst your Counsel urged me to regard the offending as a series of offences within a single episode, and to moderate cumulation accordingly in applying the principle of totality, I consider that some cumulation is appropriate to reflect; different offences, different particulars of offending, and the fact that offending occurred at intervals over a long period of time.

Sentence

65In sentencing you I have placed considerable weight upon the protection of the community, and important factors including general deterrence, denunciation and just punishment.  I am unable to reach a firm view of your prospects of rehabilitation although I consider in view of your lack of criminal history, your family life and work history that there is at least a moderate prospect of rehabilitation.  Specific deterrence has a place in the sentencing synthesis of factors in your case, although it is not prominent.

66I sentence you as follows.

67On Charge 1 false imprisonment you are sentenced to be imprisoned for four years.

68On Charge 2 sexual assault you are sentenced to be imprisoned for 2 years.

69On Charge 4, rape, you are sentenced to be imprisoned for 6 years.

70On Charge 5, rape, you are sentenced to be imprisoned for 6 years.

71On Charge 8, rape, you are sentenced to be imprisoned for 6 ½ years.

72On Charge 10, rape, you are sentenced to be imprisoned for 6 ½ years (Base Sentence).

73I direct that 18 months of the sentence imposed on Charge 1, 2 months of the sentence imposed on Charge 2, and 9 months of the sentence imposed on Charge 4 be served cumulatively upon the base sentence imposed on Charge 10.

74For Charges 5, 8 and 10 you are a Serious Sexual Offender.  There is a presumption of cumulation, however, I order concurrency between the sentences imposed for these charges and other sentences imposed in this case, save for where cumulation is ordered, and save for my direction that 9 months of the sentence imposed on Charge 5, and 16 months of the sentence imposed on Charge 8 be served cumulatively upon the sentence imposed on Charge 10.

75That makes a total effective sentence of 11 years' imprisonment.

76I set a period before which you will be eligible for parole at 7 years and
9 months.

77I declare pursuant to s 18 of the Sentencing Act 1991 that you have spent 117 days as pre-sentence detention.

SORA

78Application was made by the Prosecution for you to be registered pursuant to the Sex Offenders Registration Act 2004 and accordingly comply with reporting obligations.

79In your case registration is discretionary.  I must be satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons upon your release from custody.

80I have considered the case of Bowden v The Queen[1] and the submissions made by both parties on the Plea.  Whilst it is difficult to look forward almost eight years in order to determine risk, I find that I am satisfied beyond reasonable doubt you will pose a risk given the following:

- The preparation involved in your plan to isolate the victim and the extent of that preparation

- The predatory nature of the offending

- The sustained and persistent nature of the attack in the face of distress and protestations

- The fact that there has been no acceptance of responsibility or attempts made to explain the offending

- Your attitude toward the victim throughout

- The uncertainty surrounding your drug use and its role in the offending.

- The fact there is no expert material before me addressing your offending.

[1] [2013] VSCA 382.

81I have also had regard to the magnitude and nature of the risk should it eventuate and the gravity of possible harm.

82Accordingly being so satisfied to the requisite standard that leads me to exercise my discretion in favour of registration. I will make the order of registration and that you comply with reporting obligations for 15 years. 

83I make the other orders sought for forfeiture and disposal.