Director of Public Prosecutions v Saab (a pseudonym)
[2024] VCC 1351
•30 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IMRAN SAAB (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial:29.2.24, 1.3.24, 4.3.24, 5.3.24, 6.3.24, 8.3.24, 12.3.24, 13.3.24, 14.3.24, 15.3.24, 18.3.24, 19.3.24, 20.3.24, 21.3.24 | |
DATE OF SENTENCE: | 30 August 2024 | |
CASE MAY BE CITED AS: | DPP v Saab (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1351 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — Found guilty by jury verdict of rape (8 charges), and common assault (1 charge). Offending occurred within an arranged marriage.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Gray (a pseudonym) v The Queen [2018] VSCA 183; DPP v Patil (a
pseudonym) [2020] VSCA 33; Roma v The Queen [2021] VSCA 16;
DPP v Mokhtari [2020] VSCA 161; Johns (a pseudonym) v The Queen
[2016] VSCA 97; DPP v Jurj & Miftode [2016] VSCA 57
Sentence: Total effective sentence of 14 years imprisonment, non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T. Fitzpatrick | Valos Black |
HER HONOUR:
Introduction
1Imran Saab,[1] you have been found guilty by a jury verdict of eight charges of rape for which the maximum penalty is a term of imprisonment of 25 years; and one charge of common assault for which the maximum penalty is a term of imprisonment of 5 years or 500 penalty units.
[1] A pseudonym.
2Rape is a category 1 offence and requires a term of imprisonment. Charges 4, 5, 7, 9, and 10 are standard sentence offences. The standard sentence being 10 years' imprisonment. I am required to fix a non-parole period of at least 60% of the total effective sentence.
Offending
3In accordance with the jury verdict, I find the facts of your offending are as follows.
4The victim is Aaliyah Karimi,[2] who was born in February 1998. You married her in the Middle East in 2015 when she was only 17 years old. You were 23 years old. It was an arranged marriage.
[2] A pseudonym.
5In June 2016, you and Ms Karimi moved to Canberra, Australia. In 2017 you relocated to Melbourne. Your family, comprising of your grandmother, parents and your brother and sister, also came to Australia.
6You and Ms Karimi had two children, a son born in August or September 2016 and a daughter born on 15 July 2019.
7Ms Karimi’s evidence was that she was treated in a cruel and controlling fashion by you and your family. This was disputed by you and your family. You and your family all maintained that the relationship between you and Ms Karimi was a good one, and that she was well treated in the family home. You and your family maintained that it was inexplicable why Ms Karimi fled the family home with her children on 14 July 2021 and never returned. I am satisfied that the jury accepted in accordance with Ms Karimi’s evidence that she fled to get away from you and your family and from your abuse.
8In respect of the charges upon which you were found guilty, the first charge of rape, which is Charge 2, occurred shortly after you and Ms Karimi and your family moved into a home in the western suburbs in March 2017.
9Ms Karimi was walking down the hallway of your home. You forcibly took her into the bedroom. She was screaming and you put your hand over her mouth and told her to be quiet. She was resisting you. In the bedroom you pushed her head into the mattress to keep her quiet. You kept pushing her head down. You penetrated her vagina with your penis. This went on for 5 – 7 minutes before you ejaculated. You said to her, 'I took what I want'.
10Ms Karimi said the next incident occurred around 10 days to two weeks later. She said she was trying to take a shower while her son slept. She said she was trying to go into the bathroom when you put your foot in the door and blocked her. You took her to your brother’s room where you forced her to suck your penis until you ejaculated into her mouth. Ms Karimi vomited in the bathroom (Charge 3).
11The third charged occasion occurred at an address in the north-western suburbs where you lived with Ms Karimi and your son.
12Shortly after moving to this address, Ms Karimi was playing with your son when you came and picked up your son and took him to his room. You took Ms Karimi to the bedroom and pushed her into the bed. She was screaming. Your son, who was an infant, heard his mother screaming and began crying and calling for her. Ms Karimi tried to push you off her and said she needed to go to your son. You would not let her go. You took off her shorts and underwear and pulled your own clothes down. You penetrated her vagina with your penis. You did this for around three to five minutes (Charge 4).
13The next charged occasion occurred at an address in the western suburbs where you lived with Ms Karimi and your son after you moved from the north-western suburbs.
14One night you arrived home drunk and wanted anal sex. Ms Karimi said she wanted to sleep and did not want to have anal sex because she had haemorrhoids. You forced her onto her stomach and penetrated her anus with your penis. It was painful and there was blood on your penis and blood coming from Ms Karimi’s anus (Charge 5).
15On 15 and 16 May 2019, there were attendances by police at the family home in response to a call from Ms Karimi. There was a dispute about Ms Karimi returning home late from the gym. The evidence about these attendances took up quite a bit of time at your trial. They were not referable to any of the charges. However, these attendances clearly loomed large in Ms Karimi’s mind. She took the view that at these attendances the police took the side of her mother-in-law and against her, and she determined that in the future she would need evidence if she went to the police. She thereafter began filming your abuse on her mobile phone.
16On 25 May 2019, you and Ms Karimi returned to your western suburbs address after you had been to a christening. You were drunk. She filmed you hit her to the lower back with an open palm (Charge 6, common assault). She was heavily pregnant with her daughter when you did this.
17On 15 July 2019, Ms Karimi gave birth to her daughter. Approximately one month later, Ms Karimi had put her daughter and her son down to sleep and decided to have a shower. You came home and saw her in the shower, you undressed and came into the bathroom. You wanted to have sex. Ms Karimi told you she was still tired after the birth of your daughter and still had stitches.
18You took her out of the shower and sat her on a chair in the bathroom and forced her to suck your penis. Ms Karimi managed to push you off and ran to her daughter who was crying. She fell and hurt her hip. You went under the shower and ejaculated under the water (Charge 7).
19Sometime in early 2021, you and Ms Karimi and your two children moved back in with your family in the western suburbs. Ms Karimi’s evidence was that there had been forced sex throughout the marriage but when you moved to this address it became more frequent.
20On 11 July 2021, Ms Karimi was in her bedroom. She heard you approaching the room and opened the voice recording on her phone. This recording and the translation were exhibited at your trial. In this recording Ms Karimi tells you to release her. You repeatedly say you will force her.
21During this incident you and Ms Karimi were both standing, and you wanted her to look at your face. She refused. You began touching her body and trying to take off her clothes. You started kissing her and she tried to push you away.
22You put your hands around her neck. She says on the recording, '..the son of God you will break my neck'.
23She says you were trying to control her body and take off your clothes. You pushed her onto the bed. You didn’t take off your clothes but got your penis out. You penetrated her vagina 'a bit' with your penis before she left the room (Charge 8).
24The final charged incident occurred on the 13 July 2021 and was video recorded by Ms Karimi. The video and the translation were exhibited at your trial.
25Ms Karimi said your son was sleeping with her when you came home from work in the afternoon and removed your son and took him to another room.
26Ms Karimi went to the bathroom to avoid you. Ms Karimi felt something would happen and so began recording on her phone.
27She returned to the bedroom to get clothes to change into and you began to ask her for sex.
28She says you pushed her onto the bed and forced her to have sex. She says she was trying to push you away. You bit her on the neck and on the vagina twice. You took off her underpants and tried to penetrate her vagina with your penis. You then lifted her legs and penetrated her vagina with your penis (Charge 9). She says you put your penis in her vagina and then tried to penetrate her anus. She said you penetrated her anus a little bit and then withdrew (Charge 10)
29The video recording depicts a highly distressed Ms Karimi, telling you she doesn’t want to do it and that no means no. She asks you if you have any feelings. You tell her you will 'stick it in'. Your tone throughout the recording is a mixture of contempt and incredulity that Ms Karimi is not wanting to have sex with you and is upset.
30After this incident, a short time later, you re-entered the room and continued to yell at Ms Karimi. You blamed her for what had happened stating, 'You forced me to do it this way'.
31Throughout this conversation, Ms Karimi is crying and questions you why you do this to her. She states she will go and sleep in her daughter’s bed. You advise her that even if she slept in her daughter’s room, you would come after her.
32The next day Ms Karimi fled the family home with her children.
33You were arrested on 23 November 2021. You were interviewed by police. You told the police there were no issues in your marriage. You said you had penile/vaginal and oral sex and it was always consensual. You denied that you had had anal sex.
34You said on 13 July 2021, the day before Ms Karimi left the family home, you had been celebrating in the bedroom because you had just paid the bond on a rental property you wanted. You said you had had consensual penile/vaginal sex and that she was laughing.
35Clearly the jury rejected your account in your record of interview and accepted the account of Ms Karimi beyond reasonable doubt.
Victim Impact Statement
36Ms Karimi has made a victim impact statement.
37She says your abuse of her has left her with ongoing trauma and she requires medication for stress and depression. She says she has lost all her confidence and she still lives in fear. She says your family spread rumours about her and damaged her reputation in a small Middle Eastern community. She says her sister came to Australia three years ago, but she has had to move away from the one family member she has here in order to be safe. She says she no longer trusts men and cannot imagine meeting a man or having a boyfriend.
38On the gravity and effects on the victim of the offence of rape I have regard to the observations of the Court of Appeal in Gray (a pseudonym) v The Queen in which it was said[3]:
Rape is an intensely personal crime. The effects on the victim are not just those that flow from the physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms. This significant impact of rape on the victim needs to be given proper weight in the sentencing; it cannot be overlooked or undervalued.
[3] Gray (a pseudonym) v The Queen [2018] VSCA 163 [53]
Personal Circumstances
39I turn now to consider your personal circumstances and in doing so I refer in the main to the report of Danielle Kocic[4], psychologist, who assessed you on 7 May 2024 and who's report dated 14 June 2024 was tendered at your plea.
[4] Plea exhibit B – psychological report of Danielle Kocic dated 14 June 2024 at p.10
40You were born in July 1992. You are presently 32 years old. You were born in the Middle East, the middle child of a siblingship of three. Your mother was a university professor, and your father owned a restaurant. You report a happy childhood as part of a loving and stable family. You were brought up as a Christian and you continue to practise your religion.
41Your family, including your grandmother who is now deceased, fled your Middle Eastern home in 2015. You went first to another Middle-Eastern country, then came to Australia in 2016 and moved to Melbourne in 2017.
42In the Middle East you went to school to the equivalent of year 9. Upon arriving in Australia, you initially worked in restaurants and as a trolley collector before working as a painter. It was clear from the evidence at your trial that you and your family have all worked hard since your arrival in Australia. Your parents together with your brother have already managed to buy a house.
43You have struggled to master English, but you are studying English in custody, as well as working in custody and doing a parenting course.
44You have the ongoing support of your family. Your mother attended at your plea, and I note your brother is present at your sentencing today.
45You have no criminal history.
46You have no history of abusing either drugs or alcohol.
47On your relationship with Ms Karimi, your told Ms Kocic that your marriage had been good, and you denied there was any violence or abuse during your marriage. You told Ms Kocic that you did not feel entitled to sex with Ms Karimi solely due to being married.
48Ms Kocic assessed you as meeting the criteria for an adjustment disorder with anxiety and depressed mood in the context of your current custodial environment.
49On your offending Ms Kocic gives the opinion:
Due to Mr [Saab’s] evasiveness and denial regarding the sexual offending against his wife, the formulation of what may have motivated his offending is based on his self-reported psychological and psychosexual history. Overall, his sexual offending was likely predisposed by implicit offence-supportive attitudes such as ‘women are sexual objects’ (i.e. women were created to meet the sexual needs of men, they desire sex even if coerced or violent, and resistance construed as socially scripted foreplay) and male sexual entitlement (i.e. he should have his sexual needs met on demand, and that his sexual urges and need for gratification outweighed her objections, discomfort and dissent.)
50She goes on:
Mr [Saab’s] sexual offending was inferred to have been precipitated by his perceived sense of uncontrollability of his sexual urges, inability to delay sexual gratification, lack of self-awareness and impulsivity. He displayed a severe lack of introspection due to his poor self-awareness at the time of the offending and impaired perspective taking regard to the harm his offending would have caused the victim.
51Ms Kocic assessed you as a low to moderate risk of sexual recidivism given your offence supporting attitudes. She gives the opinion that offence specific treatment could potentially reduce the risk you pose.
52She further notes that your absence of general antisocial attitudes and other criminal behaviour and also your plans to lead a prosocial life may further mitigate any risk of reoffending.
Submissions
53Turning to the submissions of the parties.
54On behalf of the prosecution, Mr Hardjadibrata submitted that the totality of your offending was very serious and your moral culpability high.
55On your behalf, Mr Fitzpatrick relied on the following matters in mitigation. First that you are otherwise a person of good character with no prior or subsequent offending.
56Secondly, the delay between the time of being charged to the matter being finalised. Mr Fitzpatrick submitted that your mental health has deteriorated in custody during this time and that given the delay the Court should focus on the issue of your rehabilitation.
57Thirdly, he submitted I should regard you as a low risk of reoffending. Mr Fitzpatrick relied on your otherwise good character and prosocial attitudes, your good work ethic and your continued family support.
58Fourthly, although Mr Fitzpatrick did not submit Verdins principles were engaged in sentencing you, he did submit that your mental health has deteriorated in custody and that you are a vulnerable prisoner being a first-time prisoner with limited English.
59Fifthly, he submitted that you are not a citizen of Australia and consequently were at risk of deportation.
60Mr Fitzpatrick acknowledged the seriousness of your offending and the inevitability of a term of imprisonment. He submitted a lengthy period of parole would assist you to transition back into the community upon your release from custody.
Objective Seriousness and Moral Culpability
61Turning to my own assessment of the objective gravity of your offending and your moral culpability, the aggravating features of which are as follows.
62First, Ms Karimi was your wife. As the Court of Appeal noted in the case of Patil[5] the relationship between husband and wife is a relationship of trust at the most fundamental level and a husband who abuses his wife breaches that trust.
[5] DPP v Jayadev Patil (a pseudonym) [2020] VSCA 337
63Secondly, Ms Karimi was a vulnerable person. She was very young. She had left her home and her immediate family and had come to a foreign country where she did not speak the language or understand the culture. She had two children in a short space of time. She was utterly dependent on you and your family. Instead of supporting and encouraging her, you abused her.
64Thirdly, your offending was protracted, covering a period of around four years. Ms Karimi’s fear and despair could only have increased during this time and indeed in the end she was forced to flee with her children.
65Fourthly, all the charges of rape involve you ignoring Ms Karimi’s protestations. It is clear you held the belief that you were entitled to sex whenever you wanted it and that Ms Karimi had no say in the matter. You treated her with a complete lack of respect and regard for her autonomy.
66Fifthly, you did not wear a condom during the penile-vaginal rapes.
67Sixthly, your offending involved threats, some acts of violence, including biting her on the vagina, and on occasion caused her pain, in particular Charge 5, which is the first charge of anal penetration.
68Seventhly, Charges 4, 7, 9 and 10 occurred when Ms Karimi was trying to care for her infant children. You put your own sexual gratification above not only your wife, but also your children's needs. Further, in respect of Charge 7, Ms Karimi had only given birth to her daughter around one month earlier and you ignored her protestations that she was still tired after the birth and had stitches.
69This was very serious offending and your moral culpability is very high.
Sentencing Considerations
70The principles of both general and specific deterrence, denunciation and just punishment are all engaged in sentencing you. The message must be sent by the sentence I impose, that male violence – and rape is a crime of violence - against women will not be tolerated by the courts, and that marriage is a relationship of partnership and respect and not of dominion and subjugation. The message must also be sent to you that you cannot treat any future partner the way you treated Ms Karimi.
71Community protection is also engaged in sentencing you. I accept that apart from this offending against your wife, you are a hardworking and law-abiding person. You are not a risk to the community at large and in general your prospects of rehabilitation are good, but you remain a risk to any future intimate partner.
72You are without remorse or insight into your offending. In fact, I have no doubt you still hold the view that you were entitled to treat Ms Karimi the way you did.
73I accept that gaol is a very difficult place for you and that you are experiencing poor mental health in custody, which I will take into consideration. You are still young, it is your first time in custody, you are away from your family, and you are isolated because you still have only limited English.
74The prospect of deportation also places in jeopardy your life in Australia where you have lived since 2016 and I take this into account as a form of extra-curial punishment relevant to my assessment of what constitutes just punishment in your case. I take into account also the considerable anguish the prospect of being returned to your country of origin, a country you fled as refugee, and being separated from your family, must cause you.
75I was referred to a number of comparator cases by the prosecution.[6] These cases have been of some assistance, but ultimately I must sentence you on your own facts and circumstances.
[6] Roma v The Queen [2021] VSCA 16; DPP v Patil (a pseudonym) [2020] VSCA 337; DPP v Mokhtari
[2020] VSCA 161; Johns (a pseudonym) v The Queen [2016] VSCA 97; DPP v Jurj & Miftode [2016] VSCA 57.
76You fall to be sentenced as a serious sexual offender on Charges 4, 5, 7, 8, 9 and 10. The Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed, although the prosecution do not seek a disproportionate sentence. The Court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.
77Totality is an important sentencing consideration given you face a number of very serious charges all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending.
78I take into account the maximum penalties for the offences. I also take into account the standard sentence for the offence of rape on Charges 4 onwards.
79The standard sentence applies to an offence in the mid-range of seriousness based only on its objective factors. It is a legislative guidepost. It is but one matter that I must take into consideration, and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully the facts, matters and circumstances I have taken into consideration in sentencing you.
80Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you relied, I intend to sentence you to a sentence that is less than the standard sentence on all relevant charges. Considering the matters that I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.
Sentence
81You are convicted on all charges. I impose the following sentences.
·On Charge 2, six years and 6 months.
·On Charge 3, six years and 6 months.
·On Charge 4, seven years
·On Charge 5, eight years and 6 months.
·On Charge 6, one month
·On Charge 7, eight years
·On Charge 8, seven years
·On Charge 9, eight years
·On Charge 10, six years.
82Charge 5 is the base charge. I make the following order for cumulation upon Charge 5 and upon each other. Nine months of the sentences on Charges 2 and 3, one year of the sentences on Charges 4, 7 and 9, ten months of the sentence on Charge 8 and two months of the sentence on Charge 10.
83This makes a total effective sentence of 14 years' imprisonment.
84Section 11A of the Sentencing Act, directs that unless it is in the interest of justice not to do so, the Court must fix a non-parole period, in this case of at least 60 per cent of the total effective term of imprisonment directed.
85I am directing that you must serve a period of 10 years before you are eligible for parole.
86Pursuant to s18(4) of the Sentencing Act, I declare that the pre-sentence detention served is 1,011 days up to but not including today.
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