Director of Public Prosecutions v Mum

[2020] VCC 475

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Unrevised
Not Restricted
 Suitable for Publication

Case No. CR-18-02415

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER MUM

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JUDGE:	Her Honour Judge Marich
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2020
DATE OF SENTENCE:	24 April 2020
CASE MAY BE CITED AS:	DPP v Mum
MEDIUM NEUTRAL CITATION:	[2020] VCC 475

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Mr D. Sala	Stary Norton Halphen

HER HONOUR:

Introduction

1       Peter Chibak Mum, you pleaded not guilty to a charge of raping Mikaelya Esson[1] by introducing your penis into her vagina. A trial before jury ensued, and you were found guilty of that charge.

[1] A pseudonym

2       In addition to making oral submissions, your Counsel relied on Written Plea Submissions (Exhibit 1), and also tendered a Psychological Report dated 23 March 2020 prepared by Guy Coffey, Clinical Psychologist (Exhibit 2), and a bundle of written character references (Exhibit 3). The prosecution filed an Amended Summary of Matters for Plea Hearing (Exhibit A), and victim impact statements prepared by the victim Mikaelya Esson (Exhibit B) and her grandmother Matilda Burrows[2] (Exhibit C). I have also had regard to those documents in formulating my reasons for sentence.

[2] A pseudonym

Circumstances of offending

3       In January 2016, the complainant Mikaelya Esson was 18 years of age and was living in shared accommodation in Dandenong North. On the 25th January 2016 at approximately 8.00pm, she was picked up from her home address by her ‘boyfriend’ whom she knew as Michael[3], you (who was at the time a friend of Michael’s), and an unknown male. She did not know your surname. Once you had picked her up you drove to an address in Footscray that was not known to her, leaving at some stage to purchase alcohol, then returning to that address where others were gathering.

[3] A pseudonym

4       You suggested leaving, and so the complainant left the address with you, Michael, and the unknown friend and you all went to your address in Ballarat Road, Maidstone.

5       The group drank alcohol in the lounge room of the unit until 8:00 am; eventually Michael left the lounge room and went to sleep in your bedroom. The complainant fell asleep on a mattress on the floor of the loungeroom. You were on a couch. The unknown male was on the mattress on the floor beside her.

6       Whilst the complainant was starting to fall asleep, she felt someone touching her on the vagina (this is not an act that you have been charged with, and is mentioned for context). The complainant gave evidence that she jumped up straight away and asked who had been touching her. She said that you suggested that she should move to the bedroom, and she did, and laid down on the bed in which Michael was laying, and she fell asleep.

7       She testified that the next thing she recalled was waking up on her stomach, and there was a sheet pulled over her head. She realised that you had your penis in her vagina. This is the conduct referable to the charge of rape. She was confused and angry, and you jumped off her, and she grabbed you by the ear and started punching you, causing bruising to her hands. Michael awoke and broke up the fight between you both, and 10 or 20 minutes later, Michael and his mate drove her home.

8       She immediately reported what had happened, to her father Daniel Esson[4], and grandmother Matilda Esson, and the police were summoned.

[4] A pseudonym

9       A forensic examination confirmed the presence of sperm in swabs taken from Ms Esson’s high vaginal and perianal areas. Though I am oversimplifying the scientific evidence, this included your sperm.

10      On 14 June 2016, you were arrested by police and interviewed. You falsely denied recognising the complainant from a photo or knowing her name. You accepted that you knew Michael, but falsely claimed that you hadn’t seen him for a year. You falsely denied having had sex with Ms Esson. That these answers to police are false was admitted by you in this trial.

11      In your trial on this offence, you gave sworn evidence that whilst you had been in your own bed, Ms Esson had come to you and hugged and touched you, and that you told her that you didn’t have a condom, and that she went to her bag and obtained one, and that consensual sex followed between you, stopping only because she told you that you were too good, and too big. You told the jury that you then left the bedroom and removed the condom, and that you fell asleep together. Later in the morning, when you woke, you said, she asked you for $100 and when you refused she got angry and accused you of rape. She threatened to call the police, you said, and you replied that she should call them, but she didn’t, and then you asked her to leave.

12      By its verdict, the jury rejected this account, and accepted Ms Esson’s account beyond reasonable doubt.

Effect on the victim

13      Ms Esson provided a victim impact statement detailing the effects that your crime has had upon her, which was read aloud to me by the Learned Prosecutor in the course of your plea in mitigation of penalty (Exhibit B). She told me that what had happened to her has affected her in many ways, both emotional, and also physical, including an increased frequency of her seizures. She told me that the stress of providing evidence in court was horrific. She has nightmares about you, and she wakes up crying.

14      Her grandmother Matilda Burrows also provided a victim impact statement (Exhibit C). Ms Burrows told me that her heart is broken for the impact of this crime on her granddaughter. She said that Mikaelya again is experiencing epilepsy due to stress, and it is not good for her as she is unable to plan ahead, her independence is much challenged.

15      Ms Burrows has said:

It breaks my heart to see my beautiful grand-daughter in such a dark place. She has experienced pain and suffering from the attack she endured. In the last 4 years I see depression, memory triggers of fear, dissociation, low self esteem, lack of confidence, and isolation.

I can’t reach her, I fear for her safety and well being every day, she has no joy in her life and no goals for the future.

She is severely depressed and tearful, at times anger and frustration takes over and I am equally as fearful for her well being at these times.

Personal circumstances

16      At the time of this offence you were 26 years old, and you are now 30. You are married with a two-year-old daughter, and both your wife and child live in Africa.

17      You were born in Southern Sudan, during a militia raid on your village. Your father was a farmer and one of the village chiefs, and your mother managed the household and farmed. You were the second of four children born to your parents, and you also have two younger half-brothers born to your mother; one brother has since passed away and you now have limited contact with the rest of your family in Africa.

18      Your early education was rudimentary.

19      At the age of six, your village was again attacked, and your family fled. Your mother and siblings ran in one direction, and your father grabbed you and ran, traveling approximately 200 metres before he was struck with a bullet and fell upon you. The militia kept shooting your father as he lay upon you, and he died in these tragic circumstances. You lay under your father for two hours until you were rescued.

20      At this young age, you were separated from the rest of your family and taken to a small village for a few months, and then to the Rhino Camp Refugee Settlement in Uganda, where you lived between 1998 and 2003 (that is, aged approximately 8 to 13). There, you suffered malnutrition due to limited food and water supplies, and you were under the constant threat of violence. You did not speak a common language with the others, and you lived every day with a constant fear of dying from lack of food, or at the hand of aggrieved locals, or being returned to Sudan as a child soldier. In the ten years that followed, you didn’t know if your mother and younger siblings had survived.

21      You attended school five days a week in the camp, and lessons were taught in Arabic and English. You were a capable student, and outside school you contributed to the running of the “household” to which you had been allocated, of five children, and you also worked at a farm outside the camp, played soccer with friends, and attended church on Sundays. In addition to the uncertainty as to whether the rest of your family had survived the attacks on your village, there were many hazards of camp life, including food supplies from the UN being stolen by camp soldiers, leaving you with food shortages, as well as dirty and haphazard water supplies, and prolific sickness and disease, leading to one of your friends contracting cholera and dying within 24 hours.

22      One of your friends learnt of a cousin in Australia, and you and he and the three others in your camp household applied for asylum. In this process, I am told that you were required to submit documents and pay fees for production of those documents, and you earned the money by scrounging for food, selling items at camp, and sometimes selling your own food supplies. The mere fact of gathering food obliged you to leave camp and these acts were beset by the risks that I have mentioned, posed by the locals and the risk of being kidnapped. You endured bus rides to and from the Australian embassy in Kampala which carried their own risks of attack.

23      You came to Australia, arriving at about 13 years of age, with your four companions, and you have lived here ever since. You lived in a share house with the other adolescents, without daily supervision by an adult carer. As an unaccompanied minor, you were appointed a Department of Health and Human Services guardian, with whom you met weekly, until you were 18 years old, and you have also enjoyed a number of mentoring relationships since your teenage years, and I will return to this topic when I summarise your character references. You are an Australian citizen and have permanent residency.

24      You completed studies at an English language school for a year after your arrival and then attended Simonds Catholic College in North Melbourne, and St Bernard’s College in Essendon. You were a quiet, conscientious student, never subject to any disciplinary measures. You enjoyed Australian rules football and athletics as well as your studies.

25      At the age of 15, when you were in year 9, you commenced part time work at Bowens builders’ supplies hardware store in North Melbourne, working after school and at weekends. Your tasks started with sweeping and cleaning, and over time, you were promoted into customer service.

26      Once you finished high school, in 2009 you commenced studying a diploma and then a degree in youth work at Victoria University. You continued to work part time at Bowens builders’ supplies store, and eventually moved into full time work once you finished your studies; which has continued until you were remanded into custody following the jury’s verdict.

27      Prior to your remand, you were responsible in remitting $500 per fortnight from your wage to your family, who were very reliant on those sums. You ring your wife and mother, and speak to them when you can get through, which is usually about twice a week. I accept and take into account in the exercise of mercy that your inability to assist your family financially, and the limitations on your ability to speak to them, cause great distress to you.

28      You have been active in promoting the interests and wellbeing of the South Sudanese community in Melbourne, and you told Mr Coffey in his assessment of you that you have helped establish a homework club and cultural activities for about 30 Sudanese Australian children which was run at the Flemington Bowling Club on Saturday afternoons. You have been elected a leader of your community, and have mediated between police and youths at public gatherings.

29      You have returned to Sudan on a number of occasions in the last ten years, meeting your future wife there.

30      You commenced drinking alcohol at the age of 17, and at the time of offending, you consumed alcohol with friends once a week, typically drinking about ten stubbies of beer.

31      During the course of your trial, a number of fine people who think very highly of you gave evidence on your behalf, and that was supplemented by a number of character references which I have since received.

32      Barbara Ward told me that she regards you as her adopted son (Exhibit 3). Her husband Chris introduced you to their family some ten years ago after you met Chris at Bowen’s Hardware whilst you were working. You have been a regular guest at their home, and she has mentored you, as you have worked through your course, engaged with the Victorian South Sudan community with fundraising, and generally dealt with the day to day challenges of your life as a refugee. During your trial, she gave evidence of your closeness with her two children. Their family has taken over the responsibilities of supporting your wife and daughter financially and emotionally. She and her husband have visited you weekly since you have been in custody, and she describes you as being at a very low emotional ebb as a result of your conviction, facing a future where you will not be able to return to youth work.

33      Mrs Ward’s husband Christopher gave evidence during your trial, and he also said that you had been a very treasured member of their family, who interacted very positively with their children. He considered you to be incredible positive, polite and caring.

34      John Bowen, the Managing Director of your long-time employer Bowens Timber and Building Supplies, also provided a reference. He told me that he has known you for over thirteen years, and took me through your involvement with his business from the time you started there, as a school boy, sweeping floors and tidying the timber yard. He says that despite all of your history and the personal challenges that you have faced, in his work environment, 99 per cent of the time you are a smiling, positive individual and an inspiring person to be around. You have been an outstanding employee for Bowens, and you have been popular with both staff and customers and you have represented their brand extremely well.

35      Conrad Aikin, Psychologist, provided a reference on your behalf. He told me that he held a part time position of Program Psychologist at the Helping Hand Project, which links volunteer mentors with young people from refugee backgrounds. He met you shortly after your arrival in Australia, and closely monitored the mentoring partnership because of his assessment of you as a particularly vulnerable young person, given that when you first arrived here you were an unaccompanied minor, and were living in a share house with other newly arrived adolescents, without day-to-day support from an adult carer. He described you, as, even whilst you were an adolescent, approaching life with quiet determination. You were highly motivated to learn English and study; you found academic learning difficult, but you consistently applied yourself at school.

36      Mr Aikin told me that when his beloved wife died unexpectedly in 2011, you were one of the first people outside his closest friends and family to step forward to offer emotional support. You were willing to be in the presence of his immense grief, and he describes you as listening with strength and compassion beyond that available to Mr Aiken by many of his friends who were more than twice your age. He says that you inspire generosity and compassion, the value of community and family, and not taking one’s life for granted.

37      During your trial, your mentor through the helping hand project, Noel Newell, gave character evidence for you. He described you, almost, as being his mentor, a man of tenacity, who was a very happy person to be around

38      Your personal history is one initially of unspeakable trauma and deprivation, and then of resilience, tenacity, and sheer hard work. Your achievements in coming to Australia and achieving the completion of VCE and then your university degree show you to be a man of intelligence, determined and resourceful. I take into account in very significant mitigation of both the head sentence and minimum period before parole eligibility your childhood trauma, disadvantage and peril, and the personal strength that you have shown in overcoming those very significant challenges, as well as your previous good character, and lack of previous criminal charges.

Psychological presentation

39      Guy Coffey, Clinical Psychologist, has provided a very detailed report relating to your history and psychological presentation, which I have heavily drawn upon in summarising your personal circumstances. He notes that you denied suffering any psychological problems during your childhood and adolescence. You did, at times, worry about your family and you understandably experienced grief at the tragic and traumatic loss of your father. You have never received any psychological or psychiatric treatment during your childhood or adulthood.

40      Following your intake into remand, Mr Coffey describes in you a recrudescence of post-traumatic symptoms, which you have not experienced for many years. You have dreamt of your father and deceased friends regularly, after which you could not return to sleep. You report “vivid dreams” about the dead body of your father, and you are teary when talking about your wife, daughter, and father.

41      In Mr Coffey’s professional opinion, there is no formal thought disorder, perceptual disorders, or abnormal ideation suggestive of a psychotic or mental illness. To him, you appeared to be of about average intelligence and not to suffer any cognitive impairment. He notes, as I have mentioned, that you experience insomnia and proportionate worries and anxiety, and are experiencing distressing memories and dreams associated with childhood traumatic losses, but in his view you do not suffer from the full cluster of symptoms associated with Post Traumatic Stress Disorder.

42      In providing his opinion as to your prospects for rehabilitation, Mr Coffey notes your lack of prior convictions, and lack of any anti-social personality traits. He opines that there does not seem to be any pattern of aggression, including sexual aggression, in your relationships with women. There is no suggestion of misogyny or belittling attitude or beliefs that might condone or excuse violence including sexual violence. Your cultural heritage has taught you that women are deserving of great respect in society. As you continue to deny your offending, this will be an obstacle to your rehabilitation and openness to engage in sex offender specific rehabilitation programs.

Prospects for rehabilitation

43      In Mr Coffey’s view, continued, there are few risk factors, save and except for the fact that when you offended, you were drinking heavily once a week and you would qualify for a diagnosis of Alcohol Use Disorder (DSM-V), and he recommends that your rehabilitation requires that your alcohol abuse is addressed. Mr Coffey believes that the likelihood of offending generally, and that of sexual violence in particular is low. He expresses as caveats to that view, that he cannot be entirely certain that the premise regarding risk factors is accurate, and that further assessment and offence specific treatment is required to ensure that the psychological precipitants to the offending are fully understood.

44      As I have mentioned, you have no prior or subsequent criminal history and were previously a man of impeccable character who impressed many with your character traits and capacities for strength and resilience.

45      I consider that this offending, whilst grave for reasons I will come to, is out of character for you, and it is unlikely to recur. You have very good prospects for rehabilitation, which will further improve once you come to terms with the verdict and are willing to participate in the courses and programs that are offered whilst you are in custody. As submitted by your Counsel, I intend to impose a longer than customary period of parole eligibility in reflection of this assessment and your proven abilities to recalibrate to the changes that your life has brought.

Nature and gravity of the offending;

46      In sentencing you, I must evaluate and take into account the nature and gravity of the offending.

47      I consider this offending to represent a serious example of the offence of rape. It was the opportunistic sexual penetration of a woman who was asleep, and you took advantage of her in a most traumatic and entitled way. She had earlier signalled her lack of sexual interest generally, and she had no opportunity to protest or resist. As the Court of Appeal held in Hasan v The Queen,[5] in circumstances such as these, such is an act of high culpability. You treated her as an object for your gratification in those minutes, and you ejaculated inside her as the forensic evidence demonstrated. This is the type of incident that creates fear and disgust in women that they are never safe from opportunistic sexual violation.

[5](2010) 31 VR 28, [37].

Relevant sentencing principles and purposes

48      There are a number of purposes for which sentence must be imposed in this case. In any case of rape, there is a need to impose a sentence that allows for general deterrence, punishment, and denunciation, and I have regard to those sentencing factors

49      The need for specific deterrence I consider to be moderated in your case, as I consider you to be unlikely to reoffend as I have mentioned. I also allow for your continued rehabilitation as I have mentioned.

Sentence

50      On the charge of rape sir, you are convicted and sentenced to six years’ imprisonment; and I order that you must serve a minimum of three years and nine months’ imprisonment before parole eligibility.

Pre-sentence detention

51      I declare 148 days of pre-sentence detention.