Director of Public Prosecutions v Saab (a pseudonym)
[2020] VCC 1468
•14 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDUL SAAB (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Marich | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2020, 1 June 2020, 26 June 2020 and 2 September 2020. | |
DATE OF SENTENCE: | 14 September 2020 | |
CASE MAY BE CITED AS: | DPP v Saab (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1468 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr R. Bhattacharya | Stary Norton Halphen |
HER HONOUR:
1 Abdul Saab[1], you were charged on one indictment with the following offences:
[1] A pseudonym.
· two charges of causing injury intentionally to Jen Fatuma[2] (Charge 1, between 9 June and 15 June 2018; Charge 11, between 24-25 July 2018), each of which carries a maximum penalty of 10 years’ imprisonment;
[2] A pseudonym.
· two charges of recklessly causing injury to her, in the alternative to the two preceding charges;
· two charges of false imprisonment of her (Charge 3, between
9 June 2018 to 15 June 2018; Charge 13, between 24 and 24 July 2018), each of which carries a maximum penalty of 10 years’ imprisonment;
· seven charges of rape upon her (Charge 4, between 9 June and
24 July 2018; Charge 5, on the same occasion as Charge 4; Charge 6; between 16 June and 24 July 2018; and other charges, Charge 7, Charge 9 and Charge 8, to which I will return, and Charge 10;
· one charge of sexual assault upon her, which carries a maximum penalty of 10 years’ imprisonment (Charge 14, between 24 and
25 July 2018).
2 You pleaded not guilty to all charges and a trial by jury ensued. At the conclusion of the prosecution case, I found that no evidence had been led in support of the four charges of rape the subjects of Charges 7, 8, 9 and 10, and I discharged the jury from entering a verdict on those four charges and directed verdicts of not guilty be entered. Following the jury’s deliberations, you were found guilty on the remaining charges. No verdict was taken in relation to both charges of recklessly causing injury, as they were alternatives to the charges of intentionally causing injury.
3 The hearing of a related summary charge then proceeded before me, namely that at Brunswick West between 24 and 25 July 2018, you made a threat to Jen Fatuma to distribute an intimate image of her, such distribution being contrary to community standards of acceptable conduct, while intending that she would believe, or believing that she would probably believe, that the threat would be carried out contrary to s.41DB of the Summary Offences Act 1966 (Vic). The evidence which supported this allegation had been given in the course of the complainant’s evidence in your trial in her description of the narrative of events leading to Charges 11-14. I found that charge proven. This charge carries a maximum penalty of 12 months’ imprisonment.
4 You have also pleaded guilty to two charges on a separate indictment, and of possessing a drug of dependence (methylamphetamine), and of possessing a drug of dependence (MDMA), each of which carries a maximum penalty of one year imprisonment or 30 penalty units.
5 I have received Prosecution Sentencing Submissions (Exhibit A), and your brief Criminal Record (Exhibit B). In addition to making oral submissions, your counsel relied on a written Outline of Plea Submissions (Exhibit 1), and filed a Psychiatric Report prepared by Dr Prashant Pandurangi (Exhibit 2), a bundle of certificates of completion of courses in custody (Exhibit 3), and two clean urine screens (Exhibit 4).
6 I have had regard to each of those exhibited documents in formulating my reasons for sentence.
Circumstances of offending
7 At the time of your offending, you were 35 years of age. The complainant, Jen Fatuma, was 39. She is from Somalia, the mother of four children in the care of her mother. The two of you first met in 2008 at a Somali restaurant then operated by her mother in Flemington; you were a friend of her family and were close to her brother.
8
In 2018, she returned to Australia from a two-year trip to Kenya, and she had contact with you and met you at your home, a unit in
West Brunswick. On or about Saturday 9 June 2018, she went to your unit at night time, and you were smoking ice. She also used ice. You told her that there was a devil in her, and you put on the Qur’an, and you struck her with a long metal torch on her arms, her face, and her head. The back of her head hit the wall, and she fell to the ground. Some four days later, on examination at the Royal Melbourne Hospital she was found to have a swollen right eye, with bleeding into the eye, and a CT scan revealed a fracture of the medial wall of the right orbit (eye socket). This is the offending referable to Charge 1 on the Indictment, of intentionally causing injury.
9 After you injured her and she fell to the ground, she blacked out while she was washing her face. She woke the following morning in bed and in pain. This is the offending referable to Charge 3 on the Indictment, of false imprisonment, which endured for at least 30 hours. That is, she remained in your unit, and you told her she could not go anywhere. When you left the house, you locked the door and took the key and said that if she left or if the police found out that there would be trouble. Eventually, she was allowed to go to the shops from time to time, whilst you told her that she should make sure to come back, and you kept her phone. After three days, she told you that she needed to go to a pharmacy to get a cream for her face, and she went to the pharmacy and then to a medical clinic and then to the Royal Melbourne Hospital, providing them with a false account of how she obtained her injuries. She returned to live with you.
10 The night after you hit her and caused the injury to her eye, and prior to her visit to the pharmacy, she was asleep in a bedroom in your unit. As she woke up, she was surprised by you removing her underwear and performing oral sex on her without her consent and agreement. She asked what you were doing and pulled back, but you told her 'shoosh'. This is the offending referable to your Charge 4, of rape by lingual penetration. This was immediately followed by your putting your penis into her vagina without her consent, which is the offending referable to your Charge 5, of rape by penile penetration. She asked you, 'What are you doing?' And told you to stop.
11 On another occasion after she had attended the Royal Melbourne Hospital, she had smoked ice from you, and the next thing she knew, you were on top of her, and performed oral sex on her by putting your mouth and tongue in her vagina. She was resisting and pushing back, and she did not want it. She asked you, 'What are you doing?' And told you to stop. This is the offending referable to your Charge 6, of rape by lingual penetration.
12 Ms Fatuma continued to live at your house and, on the morning of 24 July 2018, she decided to leave you, and she packed her things and left. You had a phone conversation and she said she was going to stay with her brother, and was going to get her kids. You said that she should bring back your key in an hour, or that you knew her brother’s house, so if she was not there within the hour, to expect anything.
13 She returned to your home that afternoon to return your key. The front door of your unit was open and when she entered and went to your bedroom, and you closed the bedroom door and locked all of the doors. You told her, 'You don’t know what you’re in for', and you then began interrogating her and assaulting her, hitting her with a metal torch. During the course of the night, you hit and injured her using the torch, a hunting knife, a sword, a gas lighter and a blowtorch, striking her on many parts of her body, punching her in the face and her eyes, and striking her on the top of her head with the sword, causing her to bleed. You used the blowtorch to burn her right arm.
14 You caused her numerous areas of swelling and bruising and abrasions to her body, a laceration to her scalp, and a burn to her right arm, with swelling and tenderness to her fingers of both hands. She had a fracture at the base of her fifth finger. This is the offending referable to Charge 11 on the indictment, of intentionally causing injury.
15 You smoked ice all night and made her smoke ice as well.
16 You told her to take her clothes off, and while she was naked you took photographs of her body, including an occasion in which you bound her with black sticky tape. You directed her to take certain physical positions, including with her legs apart, so that you could photograph her, and threatened to put the photos on social media if she went to police or authorities. This is the offending referable to your related summary offence, of making a threat to distribute an intimate image of her.
17 Whilst she was naked, you grabbed her breast and flicked it away. This is the offending referable to Charge 14 on the Indictment, of sexual assault. You then got your pipe and continued to take drugs.
18 Your false imprisonment by your confinement of her in your flat is the subject of your Charge 13, of false imprisonment.
19 You then told her to make tea and said that you would have a break and start again, and she took the opportunity to escape and ran naked out the front door of the unit. She then spoke to a number of witnesses and asked them to call the police, she went to a supermarket and was assisted further.
20 Following your arrest in relation to these matters, you were searched at Heidelberg Police Station, and found in your underwear was a small black purse containing two small bags, one containing 0.9 grams of methylamphetamine, and one containing 1.9 grams of MDMA. This is the offending referable to your second indictment.
21 You told police in your interview, which was played during your trial, that you did not cause Ms Fatuma the fractured eye socket, and it had been caused by someone else before she came to your flat. You claimed that any sex was consensual. Prior to your arrest, you said, you noticed that Ms Fatuma was again injured but you denied causing those injuries which also predated her attending your unit. By its verdict, the jury rejected your account, and accepted Ms Fatuma’s evidence.
22 Whilst I have not received a victim impact statement, I can safely infer that your conduct caused Ms Fatuma injuries on more than one occasion, and exceptional and lasting trauma. In relation to your sexual offending, I observed her acute embarrassment at testifying to these circumstances and the subject matter was an uncomfortable and distressing topic for her.
Personal circumstances
23 You are now 37 years of age and have a very limited prior criminal history of two court appearances – one relating to criminal damage and entering private place in 2011, upon which you were placed on a good behaviour bond, the second, failing to give name and address when property was damaged in 2013 that also resulted in a bond. I accept and take into account in mitigation of penalty that these offences are significantly out of your usual character and that this is your first period in custody.
24 You are the eldest of six children born to your parents. Your mother passed away when you were young. Your father lives in Melbourne with his partner and children, and works in his own money transfer business. Your four sisters and brother all live in Melbourne. You were born in Somalia and your family decided to move to Kenya, suddenly, once the civil war began in 1991, which fortunately protected you from seeing the violence in Somalia. Your family lived in a refugee camp in Kenya and you there attended school and learned English. Your father left for Australia first, and the rest of your family arrived in 1994.
25 You attended a language centre for three months, and then you went to Banksia Secondary College in Ivanhoe. After you finished Year 12, you attended a local TAFE and completed a year-long course in photography. You have had success in playing soccer professionally, and twice moved to Sweden in 2003 and 2005 to pursue the sport. You have maintained a connection to your Somali community whilst residing in Australia, and you have been involved in volunteer soccer coaching.
26 You have been employed in various positions including being a transport driver for Cadbury Chocolate, then for Australia Post, and you drove taxis and Ubers. You have also worked in factories, you have a strong work ethic, and you have always been employed, another matter to which I have had regard in weighing your good character and afforded mitigation to that matter as well.
27 You have had two serious relationships, one for two years from 2003, and another for two years from 2005.
28 You have never sought or received psychological or psychiatric treatment.
29 I am told that you have maintained a hobby of assembling broken or faulty computer hardware.
30 You were remanded into custody following your arrest, and you work as a cleaning billet and you spend time studying Arabic or reading religious texts including the Qur’an. You have completed a number of courses including drug and alcohol courses, traffic management and education.
31 Dr Pandurangi performed a psychiatric assessment of you and has provided me with a report (Exhibit 2). You continue to protest your innocence and, in discussion with him, further you deny any aberrant sexual interests.
32 In Dr Pandurangi’s opinion, there is no indication that you are suffering from an underlying intellectual disability. There is no indication to suggest that you, at the time of offending or assessment, suffered from an enduring psychotic illness such as major depressive disorder or bipolar affective disorder. In his view, you are unlikely to meet the diagnostic criteria for a paraphilic disorder, using the Diagnostic and Statistical Manual of Mental Disorders. You do not currently present with any symptoms suggestive of a serious mental illness, either a psychotic illness, a mood disorder or a significant anxiety disorder.
33 In Dr Pandurangi’s assessment, he notes a number of deeply concerning circumstances of your offending at [64]-[65] of his report, which I will set out in full:
'The violent offences reflect a vindictive, controlling, humiliating, demeaning and expression of power on women. Whereas, the sexual offences, which he is convicted of, were more opportunistic. Although there was some perceived threat of violence, during the sexual offences, the primary motivating aspect does not appear to be that of power or domination, and not associated with expressive violence. However, both types of offences occur in context of use of methamphetamines, which is a significant contributing factor.
The first violent offence occurs whilst Mr Saab is intoxicated with … methamphetamine, and believes that that victim is possessed by the Devil. Although this may have been a transient psychotic belief whilst intoxicated, there is certainly no evidence to suggest that the belief has lasted beyond that period of intoxication. Indeed, there is no such mention in Ms Fatuma’s statements [sic] other than during the first violent incident. The second violence offence, again, occurs whilst Mr Saab is intoxicated with methamphetamines. However, the assault is sustained and prolonged and is associated with gratuitous violence and humiliation of Ms Fatuma. The troubling aspect is that of Ms Fatuma underlying fear and helplessness during the incidents'.
34 After having applied the Risk of Sexual Violence Protocol to your circumstances, in Dr Pandurangi’s opinion, noting your difficulties across most domains of the protocol including sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability, you fall within a group who have a moderate risk of sexual violence in the future.
35 Your risk of future non-violence is essentially linked to your attitudes with violence, ability to develop an insight into your actions, motivation to engage in treatment provided to you, desist from use of illicit drugs and cope with stress. As these are at present unknown, I am unable to evaluate conclusively your prospects for rehabilitation, though having regard to your family support within the community, your largely unblemished criminal history, and your good work ethic. I note those factors as supporting a meaningful and law abiding life once you achieve parole eligibility, and I intend to impose a sentence that allows for an extended period of supervision once you are eligible.
Objective gravity of your offending; standard sentencing analysis
36 I consider your offending to be gravely serious and deeply concerning, forming part of a course of conduct over approximately a six week period with discrete offending occurring throughout.
37 Your first charges, of intentionally causing injury, and false imprisonment, involved your use of a weapon to inflict profound violence and injury on a defenceless woman in a most frightening way. You then kept her either confined to your flat, or under threat for at least 30 hours, while she was in searing pain from her fractured eye socket, which you caused. You were motivated by your desire to conceal your assault of her.
38 In the days following, you raped her twice on one occasion, while she was significantly injured, and also in pain, untreated, protesting her opposition to you. During those offences she was acutely vulnerable as a result of your behaviour the subject of Charges 1 and 3.
39 You then raped her again later after she had returned to your flat, following her medical treatment for her injury.
40 When she told you she was leaving, you lured her back to your flat and subjected her to a prolonged, violent, terrifying, humiliating ordeal – inflicting injury upon her, sexually assaulting her, and recording her humiliation and threatening to distribute the images before she eventually escaped, naked, from your flat and reported the abuse.
41 It is unusual for this court to observe such an egregious and terrifying series of incidents involving violence, sexual violence, threats and confinement. I consider each of these charges to represent a serious example of that offending, having regard to the matters that Dr Pandurangi and I have described.
42 The standard sentencing regime applies in your case to your three convictions for rape, and the standard sentence for the offence of rape is 10 years’ imprisonment.
43 The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In considering the impact of standard sentencing on your case, I have considered the decisions of
Brown v R[3] and DPP v Drake.[4] In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement, therefore, is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point. It does not affect the established 'instinctive synthesis' approach to sentencing, does not require or permit 'two-stage sentencing', and does not otherwise affect the matters which I may or must take into account in sentencing.
[3][2019] VSCA 286.
[4][2019] VSCA 293.
44 Pursuant to s.5A(2)(b) of the Sentencing Act, having regard to current sentencing standards in relation to this standard sentence offence, I can only pay regard to sentences previously imposed where rape was the subject of the standard sentence scheme, which I have done.
45 The sentence I am about to impose in respect of each charge of rape is lower than the standard sentence. Having identified and considered the relevant factors in assessing sentence including the standard sentence, the objective seriousness of the offending and matters available in mitigation, including your prior character, these are the sentences I have determined to be appropriate.
Other sentencing principles
46 I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and also specific. I must also punish you and denounce your conduct, whilst allowing for your continued rehabilitation including from your use of drugs.
47
In relation to your Charge 6, of rape, and Charge 14, of sexual assault, you will fall to be sentenced as a serious sexual offender in accordance with
Part 2A of the Sentencing Act 1991 (Vic). I regard community protection as the principal purpose of sentencing for these offences, though I note that the prosecution has not called for the imposition of disproportionate sentences and I do not intend to impose such sentences.
48 I also note that your remand has coincided with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus, and whilst you were remanded prior to the current necessity to isolate incoming prisoners, you are deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and taking religious instruction, all of which are relevant in your case. I take these circumstances into account in mitigation of sentence.
49 Finally, I have been acutely mindful of the totality principle of sentencing in considering the orders for cumulation in this case.
50 And I now pass sentence.
Sentence
51 Charge 1 – intentionally causing injury – three years’ imprisonment, six months cumulative upon the base and upon other sentences.
52 Charge 3 – false imprisonment – three years’ imprisonment, 12 months cumulative upon the base and upon other sentences.
53 Charge 4 – rape – eight years’ imprisonment – this is the base.
54 Charge 5 – rape – eight years’ imprisonment, 18 months cumulative upon the base and upon other sentences.
55 Charge 6 – rape – seven years’ imprisonment, two years cumulative upon the base and upon other sentences.
56 Charge 11 – intentionally causing injury – three years’ imprisonment, nine months cumulative upon the base and upon other sentences.
57 Charge 13 – false imprisonment – three years and six months’ imprisonment, nine months cumulative upon the base and upon other sentences.
58
Charge 14 – sexual assault – two years and six months’ imprisonment,
12 months cumulative upon the base and upon other sentences.
59 On the related summary offence – six months' imprisonment, wholly concurrent with other sentences.
60 On the two charges of possession of a drug of dependence: you are convicted and discharged.
61 Total effective sentence will be 15 years and six months’ imprisonment, with a minimum period of 11 years and six months before parole eligibility.
62 I declare 781 pre-sentence detention, excluding today.
63 In relation to the disposal order, with respect to drugs, I understand that that order is not opposed and I grant that order.
64 In relation to the disposal order of the items which I understand were seized from the flat, Mr Bhattacharya, I have not heard from you yet but my provisional view is that the non-technical items should be disposed. But I can hear from you if you wish to oppose the granting of the disposal order with respect to the electronic items.
65 MR BHATTACHARYA: Your Honour, as the disposal order was filed just before the hearing.
66 HER HONOUR: Yes.
67 MR BHATTACHARYA: I haven't had the opportunity to take instructions from Mr Saab in relation to any of the items in the disposal order.
68 HER HONOUR: Yes.
69 MR BHATTACHARYA: So my submission is that I really need to take those instructions and then have a discussion with the Crown. So I'd request that Your Honour not make any order in relation to that disposal order and that - - -
70 HER HONOUR: Yes. See, I am (indistinct) disposing the electronic items as they have nil evidentiary value.
71 MR BHATTACHARYA: Yes.
72 HER HONOUR: But I will - we can deal with that either in chambers or re-list the matter at a later time. So I make no - but you have no issue with respect to me disposing the drugs?
73 MR BHATTACHARYA: No, Your Honour, that is by consent.
74 HER HONOUR: Yes, thank you. Now, I have received a message that there is a summary offence of unlawful assault that has popped up on the main indictment. Now, is that not going to be taken any further, Mr Batten? What order do you want me to make against it?
75 MS BATTEN: Your Honour can strike that out.
76 HER HONOUR: Yes, thank you, I will strike that out. Are there any other matters that I need to deal with?
77 MR BHATTACHARYA: Your Honour, I just - just at the very last moment I didn't hear what Your Honour said about the PSD.
78 HER HONOUR: Is 781 days, excluding today.
79 MR BHATTACHARYA: Yes, thank you, Your Honour.
80
HER HONOUR: Yes, thank you. Any other matters to raise,
Mr Bhattacharya?
81 MR BHATTACHARYA: Nothing further, Your Honour.
82 HER HONOUR: Thank you. Mr Batten?
83 MS BATTEN: No, Your Honour, I'm having a little trouble with the maths but hopefully I'll get there.
84 HER HONOUR: Yes, the order will be ready for distribution shortly. If I have made an arithmetic error, which I do not think that I have, but I may have then that can be corrected in the slip rule.
85 MS BATTEN: Yes.
86
HER HONOUR: Yes, thank you very much. We will now stand down until
11 am.
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