Director of Public Prosecutions v Obiech

[2024] VCC 1739

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00346

DIRECTOR OF PUBLIC PROSECUTIONS

v

AGWA OBIECH

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024; 28 October 2024
DATE OF SENTENCE:	31 October 2024
CASE MAY BE CITED AS:	DPP v Obiech
MEDIUM NEUTRAL CITATION:	[2024] VCC 1739

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Catchwords:              Plea of guilty; Rape.

Legislation Cited:      Crimes Act 1958 (Vic) ss 38(1), 38(3); Sentencing Act 1991 (Vic) s 6AAA.

Cases Cited:R v Mason [2001] VSCA 62; R v Sebalj [2006] VSCA 106; R v Verdins (2007) 16 VR 269; R v Mooney, unreported, Supreme Court of Victoria, Full Court, 21 June 1978; R v Verdins [2007] VSCA 102; (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; R v Herrmann [2021] VSCA 160; Brown v The Queen (2019) 59 VR 462.

Sentence:                  Imprisonment for a term of 7 years and 6 months, with a non-parole period of 4 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin (For Plea)	Office of Public Prosecutions
Mr S. Marshall
(For Sentence)
For the Accused	Ms C. Davis	Slink & Keating

HER HONOUR:

1Agwa Obiech, you have pleaded guilty to one charge of rape.  This offence carries a maximum of 25 years' imprisonment.[1]

[1]Crimes Act 1958 (Vic) s 38(1).

2Rape is also a ‘standard sentence offence’ and carries a standard sentence of 10 years' imprisonment.[2]

[2]Ibid s 38(3).

3The rape charge is put as a ‘rolled-up’ count and incorporates five acts of penetration across a period of approximately an hour and a half.  There is also one uncharged act of penetration.

4I note here also that rape is a category 1 offence and no sentence other than one of 'pure' imprisonment is legally open to me.

Factual basis for sentence

5Turning first to the factual basis of your sentence. On your plea a prosecution opening dated 7 March 2024 was tendered and I will briefly summarise parts of its content here.

6The complainant in this matter is Ms Aimee Hancock.[3]  You were introduced to Ms Hancock once, about four weeks prior to your offending.  At the time of your offending, you were 26 years old, and she was approximately 40 years old.

[3]A pseudonym.

7On the 7 February 2021, at approximately 6 pm, you had a chance meeting with Ms Hancock at a park in Dandenong.  You asked her if you could go back to her place to 'lay back'.  When Ms Hancock said she was not allowed visitors at her home, you asked, and then insisted, that she go back to your house.  Ms Hancock ultimately agreed to go with you; you told her the place was nearby.  You went together to a house across the road from the park on King Street.

8The house was a four-bedroom place which appeared to be abandoned.  A man was asleep on the floor near the back door.  Ms Hancock asked you where the toilet was and you told her you did not know.

9You opened various doors in the house and eventually took Ms Hancock into a room without furniture at the front of the house.

10You began to touch Ms Hancock and tried to hug her.  Ms Hancock pushed you away and attempted to leave the room, but you prevented her from doing so by kicking her to the back of the knees. She fell to the floor.  

11You then lay on Ms Hancock's chest and started to choke her.  You asked her to 'take off [her] pants'.  Ms Hancock feared for her life.  You took off her clothes, put her legs on your shoulders and penetrated her vagina with your penis.  This is the first of the events that gives rise to the rape charge.  Ms Hancock said, 'Please don't do this' or 'let me go'; you started to choke her again.  

12Ms Hancock was afraid.  She told you her legs were cramping.  She went onto her hands and knees, and you penetrated her vagina with your penis from behind her.  You then attempted to insert your penis into her anus and when this failed you penetrated her vagina again.

13At one point, Ms Hancock tried to leave but you closed the door to stop her.  When she said to you that she needed to go to the bathroom; you told her you would take her.  She tried to put her clothes on; you did not let her.

14Once in the toilet, Ms Hancock locked the door and tried to get help by screaming through the window.  You then broke the toilet door open and took Ms Hancock back to the front room of the house and locked the door.

15I pause here to note that later, a witness, Mr Michael Robinson, who was doing renovation works on his house nearby, told police that at approximately 5:10pm he heard thudding sounds and a female voice from the King Street property saying 'Help'.

16Another witness, Mr Travis Peres, who lived in an apartment nearby, would later tell police that at approximately 4.30pm or 4.45pm, though it could have been later, he heard a woman's voice from the King Street property yell, 'No, no, no', and then silence.

17When you were back in the room, Ms Hancock was on her hands and knees again on the floor and you penetrated her vagina from behind her with your penis.  You removed your penis from her vagina and attempted to penetrate her anus.  You then placed your penis in her vagina again and penetrated her.

18After this you produced a pipe from your pocket, which Ms Hancock believed contained drugs.  You made Ms Hancock take two puffs from the pipe and rubbed an unknown substance on her lips.  You then placed your penis inside Ms Hancock's vagina while she was on her hands and knees.  I note that that event is an uncharged one.

19These events unfolded over approximately one and a half hours.  During this time, you referred to Ms Hancock as 'Rose' and 'Baby'.  She submitted to this out of fear you would harm her.  She also told you she would not report the matter to the police.

20You eventually did let Ms Hancock leave the house.  You walked her home and when you arrived at her driveway you said, 'Do you know where my baby is?'; she said she did not know.  When you asked Ms Hancock, 'When will we see each other again?'  Ms Hancock told you 'maybe Tuesday or Wednesday next week', to avoid conflict.  Ms Hancock entered the house, and you walked away.  

Complaint

21Later that evening Ms Hancock contacted Jeffery Pace,[4] with whom she had been in a relationship.

[4]A pseudonym.

22After seeing Ms Hancock that night, and listening to her recall the details of your offending, Mr Pace called the police.

23Police arrived soon after and Ms Hancock indicated that the underwear she was wearing at the time of the assault was inside her bag, in her bedroom.

24Paramedics arrived and assessed Ms Hancock; she was taken by ambulance to Monash Medical Centre. It was here that Ms Hancock outlined the details of your offending to investigating police.

Arrest and interview

25On 8 February 2021, police went to the King Street address. Two serviettes were found on a mantlepiece in a room of the house.  These were seized by police.

26Later, at about 3 pm, you were arrested in a nearby park.  

27You were interviewed on the same day, your clothing was seized, and forensic samples taken.

28The right and left-side hip area of Ms Hancock's underwear was tested, and the DNA evidence found was 100 billion times more likely if you were a contributor.  A portion of the bloodstaining and surrounding areas on serviettes found in the house were tested, with DNA analysis revealing you to be a ‘significant contributor’.  The identification of the print of your right palm was also found on the outside toilet door of the King Street address.

29On the 23 February 2021, Ms Hancock met with Detective Senior Constable Webb at the Springvale police station. A photo board of 12 images was prepared; Ms Hancock identified you.  

Nature and gravity of the offending

30Turning now to my assessment of the nature and gravity of your offending. Ms Hancock's ordeal unfolded over approximately an hour and a half, and for the entire time Ms Hancock was held against her will and was unable to leave.  I note that that is an uncharged act.

31In assessing the objective gravity of your offending, I am conscious of the need to tread carefully on the fine line between not punishing you for uncharged acts (choking, an additional act of penetration, the deprivation of liberty) but at the same time sentence you for your charged acts in in their proper context.

32The rape charge is a rolled-up count, constituted by five penetrative acts.  The rape occurs over a period of over an hour, during which time Ms Hancock was also exposed to other violence, and your physical intervention to prevent her leaving.

33Rape is an inherently grave offence.  This is reflected in the maximum penalty of 25 years' imprisonment.[5]  A rolled-up charge, as in this case, will naturally warrant a higher sentence than for a charge which only consists of a single act.

[5]Ibid s 38(1).

34Your continuing rape of Ms Hancock was made possible by the other physical conduct that you directed at her.  

35As the Court of Appeal said in R v Mason,[6] rape is an 'intensely personal crime' which affects the victim physically and psychologically.  It attacks a victim's sense of self.  Your rape of Ms Hancock was enduring and persistent and you continued to overwhelm her physically throughout.  It is a very serious example of this form of serious offending.  You acted to fulfill your own desires while totally disregarding her humanity.

[6]R v Mason [2001] VSCA 62 [8].

Moral culpability

36I accept that you did not act in a planned or organised way; you said to the psychiatrist that you ultimately consulted with that you were seeking intimacy, that you were heavily intoxicated, and 'not aware in terms of consent'.  This last feature is problematic in the context of the accepted summary, where acts of distinct and additional violence attended the multiple acts of penetration.  You were intoxicated and unwell, but you were acting in an organised way for the purposes of seeking the sexual penetration you desired.  Your rape of Ms Hancock was ongoing and brutal.

Victim Impact

37Ms Hancock did not file a victim impact statement, but I infer that what you did was absolutely terrifying for her.  I saw Ms Hancock give evidence at the earlier, aborted, trial.  She had her own difficulties, and she was vulnerable.  I have no doubt that what you did has left her shaken and afraid.

Prior criminal history

38You have a prior criminal history commencing in 2014.  You have been sentenced for offences against the person: unlawful assault, recklessly causing injury, assaulting an emergency worker, aggravated burglary among other offences of more general public disorder.  There is nothing even approaching this offending in terms of seriousness in your history; it occurs against a backdrop of a lengthy period of disorderly property and minor offences against the person.  There is no history of sexual offending.

Personal circumstances

39Turning now to your personal circumstances, you are 30 years old, and you were 26 at time of your offending.

40You are the youngest of seven children.  You were born into a family already suffering terrible grief and loss.  Your father had recently died by drowning before you were born.  Two of your siblings had passed away.  All but one of your sisters had left home, and all this in the context of the brutal civil war which defined life in South Sudan at the time.

41From the age of 5 or 6 until your family's acceptance into Australia as refugees when you were approximately 13 years old, your family lived transiently in a country made dangerous by war and by poverty.

42As a child you walked from your village in South Sudan, to a refugee camp in Ethiopia.  You spent time in a camp there and one in Kenya.  Sometimes it was possible to return to your home village in South Sudan.  You often went without food.  As a child you saw very distressing scenes from the war.

43When you arrived in Australia you attended three months of English school before starting in Grade 6 at a local primary school.  You struggled at school.  You were not confident in English.  You were bullied.  You managed to participate until Year 11 but left during that year.

44You went to TAFE and started a construction course, and you obtained a white card.

45By this time, you had started abusing alcohol, and drank wine daily from about age 18.  You used cannabis, then methamphetamine from 23 years old.  Your criminal history records offending characterised by intoxication and public disorder.

46By age 20 you had had your first diagnosis and treatment for what was then labelled as a schizoaffective disorder.

47You have had a number of short-term relationships and fathered three children.  You had lost contact with all but one of them when you were remanded.

48By the time of your commission of this offence you were drinking, abusing ice, had ceased mental health treatment, and were homeless.

49You have been accepting long-acting pharmaceutical treatment during your time in custody.

Matters in mitigation

50Turning now to matters of mitigation in your sentence.

Guilty plea

51Your plea of guilty is not classically an early one; however, it is still a matter of significance for this sentence.  When the complainant gave evidence at your trial it was clear that she suffered her own mental health problems.  Her account was truthful, in my assessment, and it is also true that her own difficulties made her experience somewhat difficult to describe, and her account was therefore vulnerable.

52At trial, a number of problems in Ms Hancock's evidence emerged, and I will not traverse those here.  It is sufficient to say that I formed the view that she needed to be recalled for further evidence before another jury was to be empanelled.  The date for that hearing came around and she did not attend.  A further hearing was listed, and you prevented Ms Hancock from being cross-examined again by entering your plea.

53In that context, I regard the value of your plea to be significantly increased; you proved the prosecution case.  Ms Hancock was released from having to give evidence again and possibly doing so after being the subject of a warrant.  You have vindicated her account; this is important, it weighs strongly in your favour and mitigates your sentence significantly.  

Psychiatric opinion

54Turning now to the evidence of psychiatric opinion in this case. On your plea, your counsel tendered a report authored by Dr Anthony Cidoni, psychiatrist.

55Dr Cidoni noted your psychiatric history.  Your first admission for treatment was in 2019 where you were treated as an in-patient at Monash Hospital after acting bizarrely and apparently responding to internal stimuli.  You were discharged into the care of a Community Treatment Team.  At that stage you were diagnosed with a drug-induced ‘mental disturbance’ in the context of methamphetamine use.

56You were admitted to custody on another case in April 2019 and transferred to the Thomas Embling Hospital where you were diagnosed with schizophrenia.

57During periods in the community when you have meant to have treatment from an area mental health service, your compliance with that treatment has been poor.

58After your remand into custody on this case on 8 February 2021, you were again transferred to Thomas Embling Hospital for treatment on a Secure Treatment Order.  You were observed to have been speaking about demons and the devil influencing your life.  These symptoms were still evident on review in early May 2021.  You were placed on a long-acting antipsychotic treatment and ultimately discharged back to a unit in Ravenhall prison.

59Since then, there have still been some observable symptoms of your illness, though less often it would seem.

60Dr Cidoni is of the opinion that the appropriate diagnosis is schizophrenia.  He reports that you have mood instability secondary to that condition.  He also reports that you have various and significant polysubstance-use disorders, particularly in relation to alcohol and methylamphetamine use.

61It is clear that at the time of your offending you had overlaid your psychotic illness with heavy alcohol and methamphetamine use.  Dr Cidoni confirms you were suffering from schizophrenia at the time of your commission of this offence, but in his opinion, there was no clear link between your psychotic symptoms and your offending, noting only the general delusional belief you held at the time, that the devil was controlling you.

62In Dr Cidoni's opinion, consideration should be given to whether treatment under the Mental Health Act is appropriate at the time of your release from custody.

63He notes that you have a history of poor compliance with treatment and that your insight into your condition is limited.

64Dr Cidoni also notes that you do not present with any interests or belief that would dispose you towards serious sexual offending.  Dr Cioni says you were intoxicated, wanted intimacy, and were and 'not aware' in terms of consent.

Verdins submissions

65Turning now to the submissions on Verdins[7] principles in your case. Your counsel submitted that limbs 1, 3 and 4 of the Verdins principles were applicable.

[7]R v Verdins (2007) 16 VR 269 (‘Verdins’).

Limb 1:  reduction in moral culpability

66Turning first to limb 1, the reduction in moral culpability, as I have already noted, Dr Cidoni found no link between any of your symptoms and your offending, while 'In a general sense [you] believed that the devil was controlling [you]'.

67I accept that you suffered from psychotic symptoms at the time of your offending, not solely caused by substance abuse, although perhaps exacerbated by this.

68However, to engage limb 1 of Verdins there needs to be some more substantive link between the symptoms that you were suffering and your offending.  A diagnosis of psychiatric illness is not sufficient.  As the court said in the case of R v Sebalj: 

'What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence and/or at the time of the sentence.' [8]

[8]R v Sebalj [2006] VSCA 106 [15] (Maxwell P).

69The diagnostic label in this case, as in any other case, is the beginning, not the end of the inquiry.  In this case there is insufficient evidence that the symptoms you laboured under somehow impaired your ability in one of the ways articulated in the case of Verdins.[9]

[9]R v Verdins (n 7) [26].

Limb 3:  moderation of general deterrence

70Turning to limb 3, the moderation of general deterrence, it was argued that on account of your psychiatric condition, which is a serious and enduring illness, the role for general deterrence should be moderated.  In the case of Mooney cited with approval in Verdins the court said:

'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.'[10]

[10]

71I will reduce the weight attached to the role for general deterrence to a degree in your case on this limb, but the role for general deterrence is not eliminated.

Limb 4:  moderation of the role for specific deterrence

72Turning to limb 4, it was argued that there should be moderation of the role for specific deterrence, I do not find sufficient evidentiary basis for reducing the role for specific deterrence on this Verdins principle.  Again, on the evidence of Dr Cidoni, your offending was motivated by your desire for intimacy; your symptoms were overlaid by substance abuse.  I will return to the more general role for specific deterrence shortly. 

Bugmy

73Turning now to the application of the Bugmy[11] principles in this case. Having regard to the instability and trauma of your earliest years, it is appropriate that the moral judgment I make about the degree of your blameworthiness, on behalf of the community in this sentence,  be informed by this background.

[11]Bugmy v R (2013) 249 CLR 571.

74The harshness with which your conduct is to be viewed is moderated on account of the profoundly unstable and frightening circumstances in which you spent your boyhood.[12] I take the view that, on that basis, you are less morally culpable than a person who has not had to absorb those disadvantages.

[12]R v Herrmann [2021] VSCA 160 [14].

75It was submitted that these matters, articulated in the case of Bugmy,[13] mitigate your sentence and I accept that submission.  Your sentence will be reduced on that account.  Further, it was submitted that the 'other side of the Bugmy sword', being the need for community protection, is neutralised or not elevated at least, by the better insight you now have into your mental illness, and your willingness to recognise and combat the effects of your childhood trauma and your sustained period of stability and treatment in custody.  I accept that these matters can support some cautious hope that the marks your background has left on you are not immutable.

[13](n 11).

76Dr Cidoni reported that your significant history of childhood trauma is 'an important factor underlying these conditions', those being schizophrenia and polysubstance use, and that you have never had appropriate psychological intervention for those conditions.  I record those matters here in the hope that at some future time you will receive the help that you need.  I reduce your sentence in accordance with the general mitigation articulated in the case of Bugmy.[14]

[14]Ibid.

Delay

77Turning now to the question of delay and its meaning for this sentence. Your case has been the subject of extraordinary delay.  The chronology in the prosecution opening sets out only the early procedure of your case.  You were remanded into custody on 8 February 2021 and you are being sentenced today, 31 October 2024.

78Initially there was a question of your fitness to stand trial.  That question was not pursued; a trial before me in February 2023 was very near to completion when it became necessary to discharge the jury; there was no fault on the part of you or your lawyers.  The complainant had given evidence and been cross-examined.

79By October 2023 the matter had resolved to this plea; a plea hearing commenced in March 2024, but there were further delays on account of the need for you to be assessed by a psychiatrist.  This was apparently very difficult to organise, or difficult to organise satisfactorily, so a whole year has elapsed since your arraignment and entry of your plea of guilty.

80During this time, you have had the uncertainty of remand and sentence hanging over you.  I take this into account as an important feature in mitigation of your sentence.

81I also take into account that while you have been in custody there has been a period of sustained voluntary treatment of your mental illness.  You have now had some experience of the stability that can come with adherence to treatment.  You have used your time in custody to work as a billet, and you have completed and enrolled in courses.

82I regard the delay in the conclusion of this case as inordinate and I reduce your sentence accordingly.

Remorse

83You have expressed some appropriate remorse for what you did, to the psychiatrist.  Those statements are of course untested, but I do give them some weight.  I accept that remorse inheres in your plea of guilty.

Rehabilitation

84Turning now to my assessment of your prospects for rehabilitation. I have to assess the likelihood of you being able to rehabilitate during and after your sentence, and to assess the likelihood of you being an ongoing danger to others.  You have a history of limited insight into your offending and a history of poor compliance with psychiatric treatment and under-reporting your symptoms.

85You also now have a long history of polysubstance abuse.

86More positively, you maintain the support and affection of your mother and sister, and I note that your mother came to court.  You have accommodation with your family on release and you also have realistic training and employment goals.

87Further, you have been voluntarily accepting long-acting antipsychotic medication while on remand and now have had a period of sustained treatment without any interference from illicit substances.  Much will depend on your continued acceptance of psychiatric treatment and also your grappling with the drug use you sought when under-treated or untreated.

88I conclude that your prospects of rehabilitation are imperfect but decent.  Your prospects would deteriorate sharply if you do not take your psychiatric illness very seriously and accept treatment for it,  and for your substance abuse problem.

Standard sentence

89In addition to all of these matters I must also take into account that the charge of rape is subject to the standard sentencing regime and the 10-year standard applies.

90The standard sentence is the sentence that, taking into account only the objective factors affecting the relative seriousness of what you did, is in the middle range of seriousness, and which provides a 'legislative guidepost' for my determination in this case.

91I do not allow the standard sentence to overtake other sentencing factors or to play a disproportionate role.  My obligation to take the standard sentence into account does not limit the matters that I am otherwise required or permitted to take into account, and it is not intended to affect my 'instinctive synthesis' approach to this sentence.  It is a legislative guidepost, like the statutory maximum.[15]

[15]Brown v The Queen (2019) 59 VR 462 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).

92I note the requirement to impose a non-parole period of at least 60 per cent of the head sentence unless I consider it not to be in the interests of justice to do so.  No submission was made in favour of disturbing that proposition and I do not do so.

93After careful consideration of the standard sentence, and the other sentencing factors, I have arrived at a sentence in the end that will fall below the 10-year standard sentence.

Purpose of sentence

94Turning now to the purposes of sentence. I have already analysed the ways in which your psychiatric illness moderates the weight given to some of the purposes of sentence.  There is still a role for general deterrence and specific deterrence in this case, though I note there is nothing in your prior history that suggests a propensity to sexual offending.

95The community needs to understand, and you need to understand, that the violation of a person's physical integrity in this frightening way will be met with serious consequences.

96There is still a role for appropriate punishment and for denunciation of your conduct.  The protection of the community will best be served by the imposition of careful conditions during a period of conditional freedom.  Those conditions will need to address your compliance with mental health treatment and the related problem of your substance use.

Current sentencing practice

97I have had regard to current sentencing practices for the charge of rape, but only those sentences imposed after the introduction of the standard sentence scheme inform my calculus in this case.  There are few, if any cases, which have your particular features, but I sentence you in that general landscape.

Disposition

98Turning now to my disposition, so, Mr Obiech, this is the part where I tell you how long you have to serve in prison.

99On charge 1, rape, you are convicted and sentenced to 7 and a half years' imprisonment, and I direct that you must serve 4 and a half years before becoming eligible for parole.

Pre-sentence detention

100Turning now to my pre‑sentence detention declaration. I declare that you have been in custody since your remand on 8 February 2021 and that you have already served 1350 days of this sentence.

Section 6AAA

101Pursuant to s 6AAA of the Sentencing Act,[16] I note that had you not pleaded guilty but been found guilty I would have imposed a sentence of 10 years' imprisonment with a non-parole period of six years.

[16]1991 (Vic).

102Are there any ancillary orders that I have missed, Mr Marshall?

103MR MARSHALL:  There's no ancillary orders, Your Honour.

104HER HONOUR:  Thank you.  All right, that completes this case.  Ms Davis, if you would like to stay and have a quick word to Mr Obiech my staff will facilitate that, but we do have another case.  You might have to catch up again a bit later.

105MS DAVIS:  Yes, thank you.

106HER HONOUR:  All right.  Thank you, counsel, for your assistance.  We'll rise.

- - -

R v Mooney, unreported, Supreme Court of Victoria, Full Court, 21 June 1978; cited with approval in

R v Verdins [2007] VSCA 102

; (2007) 16 VR 269.