Director of Public Prosecutions v Nimely (a pseudonym)
[2022] VCC 86
•8 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONEL NIMELY (A PSEUDONYM) |
---
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 Plea: 1 December 2021 |
DATE OF SENTENCE: | 8 February 2022 |
CASE MAY BE CITED AS: | DPP v Nimely (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 86 |
REASONS FOR SENTENCE
---
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.
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v R [2013] HCA
Sentence: 10 years six months imprisonment non-parole period 6 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
For the Accused | Ms J. Swiney | James Dowsley |
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. A jury found you not guilty of a further charge of rape and verdicts were not taken on two alternative charges.
[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 different address Tarneit.
4 On 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.
5 Charges 1 and 2 which occurred during the first incident.
One 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 occurred during the second incident.
8On or around 9 January 2018, when the complainant was still aged 12, you collected her in your car.
9At 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’s was still in Liberia at this time.
10The 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.
11It 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 occurred during the third incident.
12On 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.
13You 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 occurred during the fourth incident.
14On 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 to do whatever you wanted. You returned the knife to the kitchen.
15You 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.
16Immediately 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 11 occurred during incident five.
17On 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 11, sexual penetration of a child under 16.
Charges 12, 13 and 14 occurred during incident six.
18Between 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 12, sexual assault of a child under 16.
19She was wearing shorts under her dress. You put your hand under her shorts and penetrated her vagina with your finger. That is Charge 13, sexual penetration of a child under 16.
20A 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 14, sexual penetration of a child under 16.
21You 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.
22When 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.
23After 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.
24On 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
25The maximum penalty for each offence is as follows:
For sexual assault of a child under 16, 10 years' imprisonment; the standard sentence provided by the legislation is four years.
For rape, the maximum penalty is 25 years' and the standard sentence is ten years.
For sexual penetration of a child under 16, the maximum penalty is 15 years and the standard sentence is six years.
Mitigating factors
26I turn now to consider a number of mitigating factors. There has been some delay, partly because of the need for a re-trial, with both 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 be served at least in the foreseeable future, in restrictive COVID conditions and I take that into account in sentencing you.
27Mr Sonnet, for the prosecution, said at the plea hearing 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 delay in the manner in which the trial was conducted are matters to be taken into account as mitigation.
28You are a 32 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, established a family, and had never been in trouble with the law.
29In 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.
30Because you have 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.
31You 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.
32In 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.
33When 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.
34When you were eight the family was able to return to Liberia, but your house was destroyed and you lived with your grandparents.
35At age 9 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.
36As an 11 year old you were sexually abused, but Mr Coffey stated you were distressed about this, and were unable to provide any details.
37Once 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.
38At 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.
39After 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 to send over $20,000 to your family in Liberia to allow them to rebuild their house which had been destroyed during the war.
40You succeeded in becoming part of the local community in your area, and 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.
41You 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 and you looked after your two children with the help of Ms Edmund’s mother.
42In 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.
43This 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. On 15 August, you were arrested.
44You told Mr Coffey details of your time on remand, which began in police cells during which you attempted to hang yourself. Once at MRC, 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.
45You 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.
46During the time 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.
47You 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.
48Mr 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.
49On returning to prison, 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. This is under investigation.
50From 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.
51While 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.
52With 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… ‘
53Mr 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]
54The 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] Bugmy v R [2013] HCA
55It 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.
56Despite 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
57These 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. The law presumes that a child is harmed by engaging in sexual acts with an adult.
58The prosecution submits that all the offences are capable of being classified at below mid-range gravity and I shall return to that shortly.
59That 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.
60The family has had to endure disparaging remarks from members of the community and he 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.
61As 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 somewhat diminishes those prospects. Accordingly, the sentence I impose must reflect the need for specific deterrence.
62As 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.
Legislative requirements
63There 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.
64The prosecution submission as to the gravity of your offending is that all the offences are capable of being classified below mid-range gravity.
65I 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.
66The standard sentence legislation applies to Charges 4, 5, 11, 12, 13 and 14, those being the offences which occurred on or after 1 February 2018 when that scheme commenced.
67The 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.
68In 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.
69It 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 Charges 4, 5, 11, 12, 13 and 14.
70My intention is to impose a sentence reflecting reduced moral culpability by reason of the Bugmy principles and other mitigating factors. If the result is a likely non-parole period which does not appear to meet the legislative requirement of 60 per cent, any shortfall is 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.
71Rape 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 ss6D and 6E of the Sentencing Act, but the prosecution does not seek a disproportionate sentence.
72Mr 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 11, sexual penetration, four years.
For Charge 12, sexual assault, nine months.
For Charge 13, sexual penetration, three years.
For Charge 14, sexual penetration, four years.
The sentence for Charge 6 is the base sentence for purposes of cumulation. I make the following orders for cumulation:
One year of each of the sentences for Charges 5, 8, 11 and 14, and six months' of each of the sentences for Charges 2, 3 and 13 are to be served in cumulation upon the base sentence.
The 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.
The sentences for Charges 1, 4 and 12 are to be served concurrently, given that they occurred in the context of further offences, each of which attracted a harsher sentence.
This results in a total effective sentence of 10 years and six months.
In 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, 11, 12, 13 and 14.
Having regard also to the principles in the case of Bugmy together with other mitigating factors, I fix a non-parole period of six years.
73The 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.
74You have been in detention for 842 days by my calculation, not including today. That time is to be reckoned as already served, and I shall have that noted on the court record.
75Are there any other matters? First of all Mr Sonnet.
76MR SONNET: None in respect to the sentencing remarks. I think Your Honour hesitated in relation to the date of Charge 3. I make it 9 January 2018.
77HER HONOUR: 18, thank you, I will correct that.
78MR SONNET: Not arising out of the sentencing remarks, but I'd ask Your Honour to mark as an exhibit the Crown document that was sent across in relation to standard sentencing.
79HER HONOUR: Certainly, yes. That will be marked as Exhibit C in due course.
80MR SONNET: Thank Your Honour.
81HER HONOUR: Madam Associate has reminded me that summary Charge 13 is to be withdrawn.
82MR SONNET: Yes, Your Honour.
83HER HONOUR: I will mark that withdrawn. Ms Swiney, is there anything from you?
84MS SWINEY: No, Your Honour.
85HER HONOUR: Thank you. I will take this opportunity to express my thanks to you Mr Sonnet, and your instructor and you, Ms Swiney, and your instructor for your assistance during the trial and the sentencing process.
86MR SONNET: Thank you, Your Honour.
87HER HONOUR: I will leave the Bench. I will just leave the link open in case my associate wishes to raise anything.
- - -
0
0
0