Director of Public Prosecutions v Nimely (a pseudonym)
[2024] VCC 837
•8 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONEL NIMELY (A PSEUDONYM) |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | Trial 1: 18, 19, 21, 24 - 28, 31 May, 1, 2, June 2021. Trial 2: 4 – 6, 9, 11, 12, 13, 17 August 2021 Trial 3: 26 October – 3 November 2023 Tria 4: 13 – 20 May 2024 Plea 1: 1 December 2021 Plea 2: 15 July 2024 |
| DATE OF FIRST SENTENCE: DATE OF SECOND SENTENCE: | 8 February 2022 31 May 2024 |
| CASE MAY BE CITED AS: | DPP v Nimely (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 837 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Found guilty of 3 charges of sexual assault of a child under 16, 2 charges of rape, 6 charges of sexual penetration of a child under 16 – complainant sister of Accused’s partner – offences over 18-month period – offender came to Australia as 16 year old refugee – hard working – periods of dysphobia – delay.
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R [2013] HCA 37
Sentence: 10 years six months’ imprisonment; non-parole period 5 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | James Dowsley & Associates |
HER HONOUR:
1Lionel Nimely[1], you have been found guilty by a jury of three charges of sexual assault of a child under 16, two charges of rape, and six charges of sexual penetration of a child under 16.
[1] A pseudonym
2The offending occurred between December 2017 and June 2019. The complainant was aged 12 to 13 when the offending commenced. You were in a relationship with the complainant's older sister, Monika Edmund[2].
[2] A pseudonym
3In late 2017, you and Ms Edmund moved to an address in Tarneit. The complainant with her parents and her two brothers, had moved to a different address in Tarneit.
4On 29 December 2017, Ms Edmund flew to Liberia to visit her grandfather. At the time, your relationship with her was strained. She returned to Australia on 3 March 2018.
Charges 1 and 2 which occurred during the first incident.
5One day, between those two dates, that is 29 December 2017 and 3 March 2018, the complainant and her brothers visited you at your home.
6You suggested going to a local park, but the complainant declined and remained in the house. A short time later, you returned to the house. You locked the doors and asked the complainant to go into a bedroom. You asked her to take her shirt off. She did not want to and asked you why. She was confused as to why you locked all the doors. You replied, 'Just take it off, stop arguing.' You then told her to take her pants off. You told her to lie on the bed and you took your clothes off. You started kissing her neck and stomach and rubbing her body. This is
Charge 1, sexual assault of a child under 16.7You got on top of her and penetrated her vagina with your penis. That is
Charge 2, sexual penetration of a child under 16. She was aged 12 at the time.
Charge 3
8Charge 3 occurred during the second incident.
9On or around 9 January 2018, when the complainant was still aged 12, you collected her in your car.
10At the trial, she described this as being after school, although it would have been during the summer holidays. You told her, 'I think you pregnant because I forgot I come in you'. You told her you wanted to buy her the morning-after pill. You drove her to a pharmacy in Tarneit. You gave her Ms Edmund’s driving licence and told her to impersonate her sister. Ms Edmund was still in Liberia at this time.
11The complainant asked the pharmacist for the morning-after pill and stated when asked that she had had sex within the last two days. The complainant filled in the relevant form writing Ms Edmund's details. The pharmacist dispensed the pill and the complainant believed she paid $50.
12It was put to the jury that your conduct was motivated by the fact that you had earlier engaged in unprotected sex with the complainant, by inserting your penis into her vagina. That is Charge 3, sexual penetration of a child under 16.
Charges 4 and 5
13Charges 4 and 5 occurred during the third incident.
14On 15 October 2018, when the complainant was aged 13, she packed her bag to attend a school camp. You called her at home to ask what she was doing. You then picked her up from the bus stop and told her you would take her to school. You drove her there, but as it was so early, the school was closed. You drove her to a remote roadside in Tarneit and in the car you began rubbing her legs and you put your hands under her clothes. That is Charge 4, sexual assault of a child under 16.
15You then told her to get into the back seat. You pushed her jeans down and took your clothes off. You told her to lie across the back seat. You lay on top of her and penetrated her vagina with your penis. You used a tissue to clean yourself. That is Charge 5, sexual penetration of a child under 16.
Charges 6 and 8
16Charges 6 and 8 occurred during the fourth incident.
17On an unknown date in 2018, when the complainant was aged 13, you picked up the complainant and took her back to your home. You told her to take her clothes off and you took your clothes off. You began video recording the complainant on your phone and she asked why. You told her, 'Show your face in the camera' and you said, 'Girls like recording themselves having sex and putting it on website getting more money.' The complainant said she did not want to do this and you started arguing. You then went to the kitchen and came back with a knife. The complainant saw the knife and kept quiet. You said, 'Yeah, see, you scared now.' You told her to keep quiet or you would use the knife. She said she would, and do whatever you wanted. You returned the knife to the kitchen.
18You returned to the bedroom and lay on the bed. You told the complainant to sit on top of your penis and 'shove it in your vagina and to go up and down.' That is Charge 6, rape. You video-recorded the penetration at close range.
19Immediately after this, you told the complainant to go and have a shower. You entered the shower when she was there, and asked her whether she wanted to have sex. She said, 'I don't want to try.' You lifted her up in the shower and penetrated her vagina with your penis. After this you drove her to school. This is Charge 8, rape.
Charge 10
20Charge 10 occurred during incident five.
21On a date between 1 January and 26 June 2019, when the complainant was 13, you visited her home after school and you were aware she was there alone, but you checked the house before going into her bedroom. You took her clothes off and put her on the bed. You then shut the bedroom door. You asked her, 'Why are you acting so scared?' and you asked if she wanted to have sex. She said 'No'. You were laughing, but the complainant was crying. You dragged her to the edge of the bed and penetrated her vagina with your penis. You then ejaculated on her leg. That is Charge 10, sexual penetration of a child under 16.
Charges 11, 12 and 13
22Charges 11, 12 and 13 occurred during incident six.
23Between 1 June and 29 June 2019, you picked up the complainant after school and drove her to a remote roadside area in Tarneit. You rubbed her legs and put your hands under her school dress. That is Charge 11, sexual assault of a child under 16.
24She was wearing shorts under her dress. You put your hand under her shorts and penetrated her vagina with your finger. That is Charge 12, sexual penetration of a child under 16.
25A short time later, you told her to get into the back seat, where you took your clothes off and lay on top of her. You then penetrated her vagina with your penis. That is Charge 13, sexual penetration of a child under 16.
26You then drove the complainant half-way home and told her to walk the rest of the way. This was the last occasion you had sexual contact with her.
27When the offending first commenced, you told her not to tell anyone about it and you repeated that during the offending period. The complainant's parents noticed a change in her behaviour and asked you about your relationship with her. You denied any relationship. Her parents took her to the doctor for a health check, looking for an explanation for her behaviour.
28After that visit, the complainant disclosed to her father that she was having an affair with a 17-year-old boy, but she was vague as to his name or where he lived. On returning to the clinic, she told the doctor the boy was 15. At home that day, the complainant became upset and revealed that she had been having an affair with you since 2018, and you had told her not to tell anyone. She later told her mother the relationship lasted for two years. She reported it to the police on 15 July 2019, and made a VARE the next day.
29On 15 August, you surrendered to the police and were arrested. When interviewed, you told police that you did not know how old the complainant was when she first arrived in Australia, but you thought she looked 17 or 18. You said Ms Edmund told you the complainant was aged 17 when she arrived. You denied taking her to a pharmacy to get medication, and denied any sexual act with her.
Maximum penalties
30The maximum penalty for each offence is as follows:
31For sexual assault of a child under 16, 10 years' imprisonment; with the standard sentence provided by the legislation being four years.
32For rape, the maximum penalty is 25 years' and the standard sentence is ten years.
33For sexual penetration of a child under 16, the maximum penalty is 15 years and the standard sentence is six years.
Mitigating factors
34I turn now to consider a number of mitigating factors. There has been considerable delay, partly because of the need for a re-trial, the first two trials being conducted at a time when COVID-19 restrictions applied, making the process more difficult than usual. Much of your waiting time was spent on remand, with about half of it during COVID restrictions which affected the running of the prisons. I note at this point that your sentence will still be served, at least in the foreseeable future, in possibly restrictive COVID conditions from time to time, and I take that into account in sentencing you.
35The ongoing delay since the first trial has been caused by matters outside your control. It has affected your employment, your relationship with your children from whom you are now estranged, and your relationship with your new partner. She has US citizenship and finds it easier to obtain work there, so she is now residing and working there. She is due to give birth to your child in June, this month. The extensive delay is a matter I will take into account and will give it some weight.
36Mr Sonnet, who was then appearing for the prosecution, said at the plea hearing in December 2021, that it was accepted that the trial was conducted by the defence in an efficient and sensitive manner, given the nature of the charges, and indeed that is so. Even though the complainant had to be cross-examined, having given her evidence by means of a VARE, the pressure and intensity of the process was minimised. The manner in which the initial trial was conducted is a matter to be taken into account as mitigation.
37You are a 35 year old man, born in Liberia. You came to Australia as a 16 year old refugee and made a good life here with promise for the future. You worked and established a family, and had never been in trouble with the law.
38In November 2021, after the trial, you saw Mr Guy Coffey, a clinical psychologist with experience in the psychological treatment of refugees. Mr Coffey produced a detailed report canvassing your early years and your life in Australia. He concluded that at the time of the offending, you were not suffering from a mental illness, but you were suffering from alcohol abuse disorder and stimulant use disorder.
39Because you had denied the offending, Mr Coffey could not offer any opinion as to your intent, motivation or beliefs about it, and so a risk assessment was not possible. Even without it, your prospects for rehabilitation, taking into account other matters, are reasonably good.
40You were the youngest of 12 children born to your parents, your father having died a few months before you were born. Yours was a poor family, living in a poor rural area with no running water or electricity to the houses.
41In 1990 when you were an infant, a civil war began and the family crossed the border into Ivory Coast. You lived with your mother and five siblings in a camp supported by UNHCR, where you witnessed violence and seeing camp residents badly hurt.
42When you were six years old, the family fled again when civil war broke out in Ivory Coast. You walked for five days to reach Guinea and lived there in another refugee camp.
43When you were eight, the family was able to return to Liberia, but your house was destroyed and you lived with your grandparents.
44At age nine, you went to school for the first time, where lessons were in English. You found school difficult and felt humiliated when you did not know the answers to questions, and you were caned and made to work in the teacher's garden.
45As an 11 year old, you were sexually abused, but Mr Coffey stated you were distressed about this, and were unable to provide any details.
46Once again, the family had to flee when war returned to Liberia in 2003. It took five hours for the flight into Guinea, crossing a bridge in the midst of a stampede in which children were crushed and flung into the river, and other serious mishaps occurred. Once again, your family lived in a refugee camp in harsh conditions with violence and hunger.
47At the age of about 14, you were adopted by another family who brought you with them to Australia about two years later. You settled with the parents and eight of their children here in Melbourne. You started school in Year 10 and found the lessons bewildering, but worked hard at trying to improve your reading.
48After starting Year 11, you left school and found work in a warehouse, where you remained for three years. During that time, you set up house with two other young men and saved enough money to send, over $20,000 to your family in Liberia to allow them to rebuild their house which had been destroyed during the war.
49You succeeded in becoming part of the local community in your area, and you met
Ms Edmund, a Liberian-Australian woman. Tensions arose in the relationship and there was a brief separation. Ms Edmund's family, including the complainant, arrived from Liberia in 2016. You told Mr Coffey this was a happy time for you with many members of the extended family living together.50You completed a Certificate in Disability Services and considered working in that field in the future, but meanwhile, you worked as an Uber driver. In 2017, Ms Edmund went to Liberia to see her grandfather who was ill, as I explained earlier, and you looked after your two children with the help of Ms Edmund's mother.
51In March 2018, Ms Edmund returned to Melbourne, but she admitted to having had a relationship with a man in Liberia, and the two of you separated acrimoniously. In this context, you began drinking more than usual. You and
Ms Edmund reconciled following mediation encouraged by the local community, and you spent a lot of time caring for your children and with Ms Edmund's young brothers.52This ended in July 2019 when Ms Edmund told you, you should not visit the children because of the police investigation which had commenced into the offending. Then on 15 August, you were arrested.
53You told Mr Coffey details of your time on remand, which began in police cells during which you attempted to hang yourself. Once at Melbourne Remand Centre, you were locked in your cell for all but 20 minutes a day for three weeks, because of threats by other prisoners. Justice Health recorded no symptoms of mental illness then, or as time went on, and you settled into a routine of attending the gym.
54You were released on bail on 11 June 2021, after the jury in the first trial failed to reach a verdict, and you remained at liberty until the jury in the second trial reached a verdict on 17 August.
55Whilst on bail, you worked in a timber yard, including working at weekends during the second trial. You felt greatly stressed whilst on bail, and drank heavily and used cocaine which you had not done before. Indeed, you had not used any illicit substances before.
56Having been remanded in custody again on 17 August 2021, you were granted bail on 6 March 2023, after the Court of Appeal ordered a re-trial. The third trial was held in late 2023, resulting in a discharge of the jury before verdict. You remained on bail until 21 May 2024, following the verdicts of guilty in the fourth trial.
Sentencing issues
57I return now to Mr Coffey’s report as to aspects having a direct bearing on your experience of prison.
58You told Mr Coffey that your difficult experiences in the past continue to affect your mood, and you are aware of the need to address them. You told him you often talk to yourself audibly about recollections of traumatic events and your difficult childhood and about what had happened in your family life.
59Mr Coffey described this and your mood disturbance, not as a mental illness, but as periods of dysphoria, due to past adversity and current circumstances, such as missing your children and feelings of despair at your predicament, including being unable to support your family.
60On returning to prison, this is at an earlier time, you were quarantined for 14 days as required by COVID-19 protocols and after that, you were locked down between 6 pm and 8 am each day, sharing a cell with two others, which you found difficult. You have had pain from a hip condition causing some immobility and making you feel physically vulnerable. At the time of the sentence in 2022, this was under investigation.
61From time to time, extra periods of lockdown have to be implemented, if for example, you have symptoms of a cold. You are aware of an element of racism which you try to ignore.
62While Mr Coffey found you were not suffering and never have suffered from a mental illness, and therefore it cannot be said the experience of imprisonment will be more burdensome for you for that reason, he said that your circumstances and psychological vulnerabilities will heighten the hardship of custody. This is because your troubled past is more present for you, when spending prolonged periods unoccupied. You are isolated from your children and from your family of origin in Liberia and you have no community contact.
63With a background of childhood adversity, you came here without your family as a teenager. Mr Coffey commented:
' … with very limited education, he faced formidable challenges, settling into his new country of asylum, which he largely overcame through a tenacious desire to succeed and the commitment to assist his family … '
64Mr Coffey went on to say:
'Until the time of offending his life could be said to have exceeded the achievements of many former refugees who came to Australia when children, unaccompanied by their families'.[3]
[3] Report of Mr Guy Coffey dated 28 Nov 2021 at [91]
65The High Court in the case of Bugmy v R[4] decided that the effects of childhood deprivation do not diminish with the passage of time. It is not necessary for a link to exist between that deprivation and the offending, but the facts of the deprivation in the individual case, help provide the context in which an appropriate sentence is determined and it can result in a reduction of moral culpability.
[4] [2013] HCA 37
66It was held in Bugmy v R that the deprivation may compromise the offender's ability to mature and to learn from experience. For example, the offender's moral culpability for the inability to control an impulse may be substantially reduced.
67Despite the success you achieved earlier, those principles have application in your case, and I take that into account in determining the overall sentence and the non-parole period in particular.
The objective gravity of the offending
68These charges are very serious, as indicated by the circumstances in which they occurred. You were in a position of trust, in that you had a close relationship with all the complainant's family, and you often looked after her younger brothers. There was a considerable age disparity between you and the complainant. You were aged 29 to 30 at the time, and the complainant was aged from 12 to 13. You performed unprotected sex on her, against her protests, and you told her not to tell anyone. The offending continued for a year and a half.
69You abused her in her own home, where she should have been safe, and in remote roadside places, in the back of a car, which she graphically described.
70On one occasion, you used a knife to frighten her, and it was obvious that you succeeded in doing that, given that the first incident on that occasion led to the second, because of her fear.
71The law presumes that a child is harmed by engaging in sexual acts with an adult. There is no victim impact statement from the complainant, as she did not wish to provide one, but that does not exclude the presumption that she was harmed by your offending.
72The evidence was that this was a close family with traditional values. That the offending caused stress for the complainant's family, is apparent from the victim impact statement prepared by the complainant's father. He stated that the family became divided over the allegations and he was blamed for defending his daughter. I am told that the complainant now lives interstate and is completely estranged from her family.
73The family has had to endure disparaging remarks from members of the community and the complainant’s father suffered income loss due to absence from work as a result of the charges. He referred to the family being socially and economically challenged as a result of your offending.
74As I said a few moments ago, your achievements over the years, and the absence of any previous convictions, indicate that your prospects for rehabilitation are likely to be good, but the absence of any remorse and the consequent lack of insight into your offending might somewhat diminish those prospects, at least theoretically. Accordingly, the sentence I impose must reflect the need for specific deterrence to some extent.
75As for general deterrence, serious sexual offending against a child is regarded with abhorrence by the community, and the need to deter others is regarded as an important aspect of sentencing. The vulnerability of children and their inherent need for protection should be reflected in the sentence, whilst still taking into account the particular circumstances of the offender in any particular case.
Legislative requirements
76There are a number of legislative requirements applicable to sentencing in this case. The legislative scheme imposed by ss5A and 5B of the Sentencing Act 1991, requires me to consider the objective gravity of the offending without reference to your personal circumstances and wholly by reference to the nature of the offending.
77The prosecution submission as to the gravity of your offending, was that all the offences are capable of being classified below mid-range gravity.
78I have proceeded on that basis and imposed individual sentences at what I consider to be below the mid-range, to reflect that level of gravity and taking into account the requirement of s5A(1)(b) of the Act.
79The standard sentence legislation applies to Charges 4, 5, 10, 11, 12 and 13, those being the offences which occurred on or after 1 February 2018, when that scheme commenced.
80The standard sentence applicable to each offence is to be used as a guide to the appropriate sentence. The non-parole period must be, in relation to these offences, 60 per cent of the sentence unless it is in the interests of justice not to do so.
81In this case, the principles in the case of Bugmy, as I mentioned earlier, apply to mitigate the sentences imposed. That mitigation is enhanced by the other mitigating factors I have identified.
82It is not possible to separate the charges in this case, and apply a non-parole period of 60 per cent to what must be a notional head sentence covering the charges that I have mentioned a moment ago.
83My intention is to impose a sentence reflecting reduced moral culpability by reason of the Bugmy principles and other mitigating factors. The result is that the non-parole period which I will be imposing does not meet the legislative requirement of 60 per cent, the shortfall being met by the reduction in moral culpability. In reaching this conclusion, I have had regard to the matter set out in s5B(3) of the Act.
84Rape is a Category 1 offence, meaning a sentence of imprisonment must be imposed. You are to be sentenced as a Serious Sexual Offender in relation to Charge 3 and all subsequent charges. This engages s6D and 6E of the Sentencing Act, but the prosecution does not seek a disproportionate sentence.
85Mr Nimely, I sentence you to the following terms of imprisonment:
· For Charge 1, sexual assault of a child under 16, nine months.
· For Charge 2, sexual penetration of a child under 16, four years.
· For Charge 3, sexual penetration, four years;
· For Charge 4, sexual assault, nine months.
· For Charge 5, sexual penetration, four years.
· For Charge 6, rape, five years.
· For Charge 8, rape, five years.
· For Charge 10, sexual penetration, four years.
· For Charge 11, sexual assault, nine months.
· For Charge 12, sexual penetration, three years.
· For Charge 13, sexual penetration, four years.
86The sentence for Charge 6 is the base sentence for purposes of cumulation. I make the following orders for cumulation:
87One year of each of the sentences for Charges 5, 8, 10 and 13, and six months' of each of the sentences for Charges 2, 3 and 12 are to be served in cumulation upon the base sentence.
88The cumulation of six months' in respect of the sentences for Charges 2 and 3, in contrast to the greater cumulation orders in respect of the sentences for the later charges of sexual penetration, reflect the need for more severe punishment for subsequent offending.
89The sentences for Charges 1, 4 and 11 are to be served concurrently, given that they occurred in the context of further offences, each of which attracted a harsher sentence.
90This results in a total effective sentence of 10 years and six months.
91In fixing the period which you must serve before being eligible for parole, I have had regard to the legislative requirement regarding standard sentencing, applicable to Charges 4, 5, 10, 11, 12 and 13.
92I fix a non-parole period of five years and nine months. In fixing both the head sentence and the non-parole period, I have had regard to the principles in the case of Bugmy together with other mitigating factors. In fixing a lesser non-parole period than in the original sentence, I have taken into account the longer delay which has occurred since then.
93The provisions of the Sex Offender Registration Act apply and require you to provide your details to the police every year for the rest of your life after your release from custody. You would have signed that document I believe after the initial sentencing hearing, but as a re-trial has taken place, it will be necessary for you to sign that document again and that will be arranged for you.
94As at 6 March 2023 when granted bail, you had been in detention for 1,232 days. You were remanded on 21 May 2024, adding a further 10 days, not including today. The total period of pre-sentence detention is therefore 1,242 days, which I declare to be reckoned as having been served already. I shall have that noted on the court record, subject to a correction about those pre-sentence days.
95Are there any other matters first of all Ms Roberto? Anything I have neglected or omitted?
96MS RUBERTO: No, Your Honour.
97HER HONOUR: Thank you. Ms Swiney, anything else?
98MS SWINEY: No, Your Honour.
99HER HONOUR: Now I would like to take this opportunity right at the end of the process of thanking the prosecution, Ms Duckett, and her instructor, which you could convey perhaps Ms Ruberto to her and to thank you Ms Swiney and your instructor as well for your considerable assistance over the various trials and the sentencing processes. Thank you.
100MS SWINEY: As the court pleases.
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