Director of Public Prosecutions v S S (a pseudonym)

[2017] VCC 1568

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

S S

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2017
DATE OF SENTENCE:	21 August 2017
CASE MAY BE CITED AS:	DPP v S S (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1568

REASONS FOR SENTENCE
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Subject:  Threat to kill; assault; rape
Catchwords:  Domestic violence
Legislation Cited:  Sentencing Act 1991
Cases Cited:  Bowden v The Queen [2013] VSCA 382

Sentence:8 years and 6 months imprisonment; 6 years and 3 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	OPP
For the Accused	Ms N. Karapanagiotidis	James Dowsley & Associates

Pages 1 - 10

 

 

HER HONOUR:

The charges

1S S,[1] A jury has found you guilty of one count of threat to kill, one count of common assault and three counts of rape.  The maximum penalty for threat to kill is five years, the maximum penalty for common assault is two years and the maximum penalty for rape is 25 years. 

[1] A pseudonym.

Circumstances of offending

2The complainant in this matter is your ex-girlfriend, M K.[2]  Your offending took place between 9 and 10 October 2014 at M Ks home.  The offending occurred while her 6-year-old son was present in the unit.

[2] A pseudonym.

3With respect to Charge 3, make threat to kill, after you entered the unit you grabbed her mobile phone and said to the complainant, "If you dare to call the police, I will kill you and then I'm not afraid to go to prison."  You were aggressive and the complainant was afraid. 

4You repeatedly asked her to have sex with you and she refused.  You grabbed her by the hand and held her forcefully against your chest.  When she attempted to break free you kicked her on her shin, which caused her to fall to the ground, landing on her back. 

5Charge 4 of common law assault relates to your actions of them stomping on the complainant's stomach, causing her to feel pain and loss of breath.  You then grabbed her by the wrist and dragged her into the second bedroom. 

6Charge 5 of rape relates to your actions in the bedroom when you forcefully removed her pants and your pants.  You then laid down on top of her and penetrated her vagina with your penis.  The complainant begged you to stop but you told her to shut up and not to say anything.  You placed a hand across her mouth and your other hand on her neck.  As a result of these actions, the complainant felt like she was being strangled.  You had sexual intercourse with her and ejaculated in her vagina. 

7Charge 6 of rape relates to your action sometime after this.  You forced the complainant's mouth open with your hand and put your penis into her mouth.  You had your other hand around her neck.  She could not breathe and asked you to let go of her neck.  You did so and ejaculated into her mouth.  You told her to swallow the sperm and slapped her on the face for holding it in her mouth, which caused her to swallow. 

8Charge 7 of rape relates to your actions in lying down on top of the complainant and penetrating her vagina with your penis. 

9The complainant told her friend about the incidents on the evening of 10 October 2014, she accompanied her to the police station, where the matter was reported to the police. 

10Forensic medical examination was conducted at the Sunshine Hospital on
10 October 2014.  At this examination, the victim complained of tenderness over various parts of the body but there was no obvious bruising or injury.  With respect to the genital examination, small abrasions were found on the inside of the bottom right labia minora and the right side of the bottom part of the vagina.  While Dr Lim concluded that the abrasions were caused by frictional trauma from a penetrative event, she could not say whether they were due to consensual or non-consensual sex. 

11When you were interviewed at the Footscray police station on 11 October 2014, you admitted to being at the complainant's unit on the day the offences were committed but you denied having sexual intercourse with her.  On 7 July 2016, a DNA test provided evidence that you were a contributor to sperm found in the complainant's cervix.  At the trial of this matter, you admitted to having sexual intercourse with her but claimed that it was by consent. 

Personal circumstances

12Your personal background was contained in a report from Jeffery Cummins.  You came to Australia on a refugee visa in late 2011 and settled in Melbourne.  You have always been employed in Melbourne, most recently in restaurant work. 

13Mr Cummins found that you do not have any mental health issues and that you are of low-average intelligence.  He considered that you probably offended under circumstances where you were feeling sexually aroused and convinced yourself that M K was consenting.  He assessed your risk of reoffending as being low to moderate. 

Defence submissions

14In her plea on your behalf, your counsel submitted that your offending should be regarded as one episode of offending, as it was confined in time, consequently, that the charges should attract significant concurrency.  She acknowledged that a period of imprisonment was appropriate and that general deterrence was an important sentencing consideration. 

15However, a number of mitigating matters were relied on to reduce the sentence imposed.  They were as follows: 

·you have no criminal history and there has been no subsequent offending;

·you have a history of persecution and displacement, leading you to come to Australia as a refugee in 2011;

·there has been delay in this case, in that the offending occurred on 9 October 2014;

·there is a likelihood that your permanent residency will be cancelled and that you will remain in immigration detention after your sentence until your status is resolved;

·you have a previous good work history and favourable prospects of rehabilitation. 

16In addition, it was submitted that custody would be onerous for you.  This was because it was your first time.  Your ability to communicate was limited due to the language barrier.  You had no contact with your children in overseas and the uncertainty regarding your immigration status. 

17A number of references were tendered with respect to your previous good character.  A reverend, who has known you for more than 40 years described you as having a good heart, being reliable and helpful in church activities.  Ms G T,[3] who had known you for 30 years, including when you were in primary school, described you as being a generous man; you had been generous to her family and she had returned the favour by visiting you in custody.  She said that prior to your incarceration, you spoke to your daughter overseas by phone every week and sent money back to help your children. 

[3] A pseudonym

18Your first cousin, A D,[4] has known you for the whole of his life and described you as being a very quiet and reserved type of character, kind-hearted and always available to help people in need.  He was shocked to hear of your situation. 

[4] A pseudonym

19You lived with your niece for a period of two years. In her reference she described you as bringing laughter and happiness into her tight-knit family over this time, and of being a hardworking man who loves his children abundantly and being a grandfather figure to her 17-month-old son. 

Prosecution submissions

20In her sentencing submissions, the prosecutor called for an immediate sentence of imprisonment.  It was submitted that general deterrence was an important sentencing consideration, given that the offending had occurred in domestic violence context. 

21As you had previously been in a relationship with the complainant, there was a breach of trust in your offending.  It had been sustained, taking place over three to five hours and although there were no physical injuries, it involved a threat to kill and violence. 

22The prosecutor accepted that it was appropriate for some weight to be given to the delay in this case.  In particular, because there had been a change in informants.  It was also accepted that while in custody, you would be concerned about the possibility of deportation at the end of your sentence. 

Sentencing remarks

23In sentencing you, I have taken into account all the mitigating matters referred to by your counsel and the character references presented on your behalf.  You have no prior or subsequent convictions.  It was apparent from the character references that you were a man of previous good character.  Given your previous good character and work history, I accept that your prospects for rehabilitation are relatively favourable.  In this respect, I note that Mr Cummins regarded your risk of reoffending as being low to moderate. 

24You are a man who has experienced hardship and persecution in your country of birth.  No doubt, when you came to Australia, you hoped for a better and trouble-free life.  I accept and have taken into account that you will find imprisonment difficult, given the matters mentioned earlier in this sentence.  I have also given some weight to the delay in this matter. 

25While I have taken all these mitigating matters into account, general deterrence remains an important sentencing consideration.  Domestic violence is a problem in our community and others must be deterred from offending against their ex-partners in the way you did on this occasion.  In offending in this way, you not only abused your position of power, but you also committed a grave breach of trust. 

26It is apparent from the complainant's victim impact statement that she has been greatly affected by your offending.  The complainant is constantly in fear and scared because of what happened to her.  She has trouble trusting people and is embarrassed.  While she was planning to work prior to the offences, she has now lost this aspiration and she is concerned about the impact of your offending on her young son. 

27Pursuant to the Sentencing Act, a person is a serious sexual offender if they have been convicted to two or more sexual offences, for each of which they have been sentenced to a term of imprisonment.  In this case, you will be sentenced as a serious offender on Charge 7 or rape. 

28Pursuant to the Sentencing Act in determining the length of the sentence, the court must have regard to the protection of the community as the principle purpose for which the sentence is to be imposed.  The court may impose a larger than proportionate sentence to the gravity of the offence.  The prosecutor has not asked for such a sentence.  I will not be imposing a sentence longer than that which is proportionate to the gravity of your offences. 

29Taking into account the principle of totality, there will be some concurrence between the offences in this case.

Sentence

30You are to be sentenced as follows:

31On Charge 3, make threat to kill, two years' imprisonment; on Charge 4, common law assault, 12 months' imprisonment; on Charge 5 of rape, six years imprisonment; Charge 6 of rape, six years imprisonment; on Charge 7 of rape, six years imprisonment.  The base sentence is a sentence of six years on Charge 7 or rape.  I cumulate 12 months of the sentences on Charges 5 and 6 of rape on Charge 7.  I cumulate four months of the sentence on Charge 3 and two months of the sentence on Charge 4.  Your sentence is therefore eight years and six months.  I fix a non-parole period of six years and three months.  Yes.

32MR REYNOLDS:  No further matters, Your Honour.

33HER HONOUR:  I think there are.  The sex registration, is there not?

34MR REYNOLDS:  Apart from the pre-sentence detention.

35HER HONOUR:  There is the sex registration as well.  What is pre-sentence detention?

36MR THOMPSON:  Sixty-six days, 66 days not counting today, Your Honour.

37HER HONOUR:  I declare 66 days as pre-sentence detention.  What is the situation in relation to the Sex Offenders Registration Act?

38MR THOMPSON:  Well, more than one class 1 offence will be live, Your Honour.

39HER HONOUR:  I was informed on the last occasion that it was discretionary - I do not know why.

40MR THOMPSON:  I do not think so, Your Honour.  Sorry, I did not bring the legislation but there is three class 1 offences that would be live. 

41HER HONOUR:  They are all class 1?

42MR THOMPSON:  Yes, Your Honour.

43HER HONOUR:  All right - defence?

44MR REYNOLDS:  That is something we would like to check.

45HER HONOUR:  Yes, because - do we have a copy of the act? 

46MR THOMPSON:  I think I left my iPad at the security on the way through, in a hurry, Your Honour, I am sorry. 

47HER HONOUR:  Here we go, we have got it.  All right.  "A class 3 offence is the offence listed in Schedule 3, committed against a person other than a child who is a serious sexual offender for the purposes of this section.  A registerable offence is a class 1 or class 2."  There must have been some reason they made those.  I thought I checked and that that was correct but let us have a look.  "An offence against the provision the Crimes Act that involves sexual penetration" - I am reading from class 3 offences.  It seems to me that it might be a class 3 offence.  It might be necessary to stand it down just to check that provision.  But I had, in my notes from the last occasion, that the prosecutor informed me that because these were class 3 offences, it was discretionary as to whether or not he is placed on the Sex Offenders Registration Act.  On my reading of the act, class 3 offences are discretionary but it does seem a bit odd given the serious nature of the offences, does it not?

48MR THOMPSON:  Sorry, I would have thought - I thought class 1 was - rape was class 1, which if there is more than one of them, I thought it was - or even one was enough for life, I thought, Your Honour, but maybe I am wrong.

49HER HONOUR:  Well, I am just - this what the prosecution said on the last occasion.  I think probably the best bet is just to stand it down shortly and I will just have a closer look at the act - and can you get the act up on the computer for them, for counsel, and they can have a look at it as well and we will just check what the situation is.

50MR THOMPSON:  Thank you, Your Honour.

51HER HONOUR:  All right.  Stand down.

52(Short adjournment.)

53HER HONOUR:  Yes, surprising although it might appear, I believe it is discretionary; does anyone disagree with that?

54MR THOMPSON:  Yes, Your Honour, we are in heated agreement, Your Honour, and ‑ ‑ ‑

55HER HONOUR:  We are all on heated ‑ ‑ ‑ 

56MR THOMPSON:  Yes.

57HER HONOUR: ‑ ‑ ‑ and I think that is because serious sexual offender provisions really largely - in terms of children - is when it - yes all right. Well, I had assumed that was the case and that the prosecution had informed me correctly on the last time and when I checked the law, that was my impression. I had decided to do the following, is to tell the prisoner that he falls into discretionary registration under s.11 of the Sex Offender Registration Act, which means I can only make an order to have him registered if I am satisfied beyond reasonable doubt that he poses a risk to the sexual safety of one or more members of the community. 

58Taking into account all the circumstances of this case and the decision of Bowden v The Queen,[5] I am not satisfied beyond reasonable doubt that you pose a risk to sexual safety of one or more persons in the community for the following reasons:

·You are now 53 years old and you have no prior or subsequent convictions;

·I have reference with respect to your previous good character;

·Mr Cummins considers that your risk of reoffending is low to moderate;

·your prospects of rehabilitation are relatively good;

·I consider that the specific deterrence effect of the sentence imposed on you will be sufficient to deter you from reoffending;

·I have taken into account that your DNA will be on the database because I will make an order pursuant to s.464ZF. 

[5] [2013] VSCA 382

For all those reasons, I am not going to place you on the register.

59MR THOMPSON:  As Your Honour pleases.  You can explain to him what that means.

60MR REYNOLDS:  Yes.

61HER HONOUR:  The forfeiture order I will make on the basis it is in the interest of the community, the seriousness of the offending and it is by consent. 

62MR REYNOLDS:  It is. 

63HER HONOUR:  Was there any other order that needed to be made in this case?

64MR THOMPSON:  No, Your Honour.

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