Director of Public Prosecutions v Sadaka
[2015] VCC 343
•25 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00392
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NABIL SADAKA |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9-27 February 2015, 20 March 2015 | |
DATE OF SENTENCE: | 25 March 2015 | |
CASE MAY BE CITED AS: | DPP v Sadaka | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 343 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty of one charge of rape –- Cognitively impaired complainant – Not isolated incident – moral culpability high – No prior offences – Person of previous good character – No mental or physical health issues – Risk of re-offending low.
Legislation Cited: -
Cases Cited: -
Sentence: Sentence of seven years’ imprisonment with a non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Hennessey | OPP |
| For the Accused | Ms J. Swiney | VLA |
HER HONOUR:
1 Nabil Sadaka; on 27 February 2015 a jury found you guilty of a charge of rape. That is an offence which has a maximum sentence of 25 years’ imprisonment.
2 By their verdict the jury have accepted that:
· in the year 2003 you were driving a Driver Bus Line bus on route number 623;
· on an occasion during that year you had Ms Freda Marten[1], a passenger on your bus, perform an act of oral sex on you in your bus at the Glen Waverley bus terminus;
· she did not give consent to that act;
· you were aware of this lack of consent.
[1] A pseudonym
3 The principal prosecution case was that Ms Marten was incapable of consenting to that act due to her cognitive impairment, making her incapable of understanding the sexual nature of the act; about which you were well aware. Alternatively, the prosecution case was that Ms Marten submitted to the act because she thought she might get hit if she did not. It is not possible to say on what basis the jury were satisfied that there was no consent, as the verdict does not require the jury to announce a finding other than guilty or not guilty.
4 It is necessary therefore for me to make a finding as to the basis on which you will be sentenced. On the evidence led before the jury, I am satisfied beyond reasonable doubt that Ms Marten was not able to give consent because she was incapable of understanding the sexual nature of the act, and that you were aware of her disability and aware that she could not consent.
5 Ms Marten gave evidence that she met you as the bus driver on the route she took to her TAFE campus. She was then aged 21 years and was a frequent passenger on your bus. After a while you talked to her and she came to know you, and I am satisfied, to trust you. Ms Marten gave evidence that after the first time that an act of oral sex took place it happened on many occasions when you took her on your bus to the Glen Waverley terminus, where you had your lunch break. She said that this continued until you changed bus routes at the end of 2006. There were no charges arising from these allegations, but the jury heard the evidence to provide context to the single charge of rape.
6 The prosecutor submitted that I should accept the evidence of these other sexual acts to show that the charge of rape was not an isolated incident, but was the first in a series of incidents. The prosecution case also relied on evidence which suggested that the initial opportunity for you to sexually assault Ms Marten was presented to you because she had been told by her parents to seek help from a bus driver if the person that she reported as harassing her at the bus stop continued to do so[2].
[2] Exhibit B on the plea
7 Your counsel submitted that I could not accept that the other sexual acts took place because it was said Ms Marten, in her own evidence, demonstrated that she could not have been with you in your bus at certain lunchtimes. First, Ms Marten said that the sexual activity did not happen in the first half of 2004. Next, it was argued that as her evidence was that she was at Box Hill TAFE for the whole day during her studies there in 2005, that when on other campuses she always had her lunch at TAFE, and that she only saw the person who was harassing her on one day, which led her to go to a bus driver for help, it was not open for me to make a finding that these other acts occurred, due to the uncertainty that there was any other occasion on which she could have been with you on the bus at lunchtime.
8 While Ms Marten’s evidence was clear that no sexual acts took place in the first half of 2004[3], I find that it is not clear from her evidence that the opportunity did not present itself for her to be on your bus at lunchtime on other occasions between 2003 and 2006. Questions about lunch were asked of her in a general way[4].
[3] See trial transcript p258/7-21
[4] See for example: pp193/17-198/8; pp204/29-207/1; discussion at p210; p235/22-30; pp245-6 and discussion at p247; pp248-9 and discussion at pp250-1;
9 As other sexual activity led for the purpose of context cannot be treated as aggravating the single charge of rape, I do not have to be satisfied about it beyond reasonable doubt. I have re-read the evidence of Ms Marten and I find that this sexual activity happened on other occasions after the first event. It is not necessary to find any more than that. The rape you committed in 2003 was not an isolated incident.
10 Your crime is made more serious by the following factors. First; as a person dealing with the public on a daily basis in your employment you gained a level of trust. With Ms Marten and her parents, because of your position as a bus driver you specifically gained their trust. Mr and Mrs Marten told Ms Marten to turn to the bus driver for help in dealing with the person who was harassing her at the bus stop. When she did, instead of assisting her you seriously abused the trust placed in you by Ms Marten arising from her knowledge of you as a friendly person, and the trust placed in you by her parents from their knowledge of your position as a bus driver, even though they did not personally know you.
11 Next; Ms Marten is a person with a learning disability, so that a sexual offence committed against such a person is more serious than that committed against one who does not have that vulnerability.
12 Next; you made it clear in your interview with police that you were aware of her disability. As the jury have found that you committed the act of rape, it follows that you did so while being fully aware of that disability. I am satisfied that you used that knowledge to take advantage of her vulnerability, and that also makes your offence more serious.
13 Next; you persisted in your conduct of calling her onto your bus when heading to the terminus for your lunch break in order to create the opportunity for the sexual activity. By that I mean that although Ms Marten ran away from you when you tried to hug her on the first occasion that you took her to the terminus - which made it clear to you that she did not want such contact - I am satisfied that you called her onto the bus when the opportunity next presented itself, took her to the terminus and committed the rape.
14 For all of these reasons I class your offence as one which is a relatively serious example of such a crime. Further, I find it was committed by you purely for your own sexual gratification, and with total disregard for the vulnerability of Ms Marten. You have shown no remorse. It was not an isolated incident. Your level of moral culpability is high.
15 I received statements from Ms Marten, her mother and her brother, telling me about the impact of your crime - and the ongoing sexual activity, led as context - on each of them, and the family as a whole[5]. Ms Marten’s parents and brother were saddened and shocked by learning of what had happened to their daughter and sister as she sought to make her own way in life and be as independent as her disability would allow. Her parents suffered from guilt for suggesting to her that she seek assistance from a bus driver, which threw her into your path and created the opportunity which you took criminal advantage of. They should not feel guilt, because you are the guilty one.
[5] Exhibit D
16 Ms Marten struggled to understand what was happening to her. She knew she did not like it, but she did not understand the sexual nature of the act and had no words to tell anyone about it for years. Meanwhile, she kept getting on a bus to go to TAFE because she could not tell her parents why she did not want to go anymore. Her brother, Dr Marten, succinctly summed up the impact on the whole family. I have taken the contents of those statements very much into account.
17 Ms Marten, can I tell you that you have been very strong and brave in giving evidence. I am pleased to hear from your statement that you are happier now that the case is over, and that you are trying to get on with your life. I know that you enjoy your work at Woolworths and that job is very important to you. I hope that you continue to do well.
18 Returning to you, Mr Sadaka. There are some matters that I must take into account in your favour. The first matter is that you have never been convicted of a criminal offence before, and so I sentence you as a person with previous good character.
19 Next; I take into account your personal circumstances and your history, as outlined by your counsel[6]. You came to Australia from Lebanon in 1997 when you were aged 23 years. You had worked in the family business there from a young age during school holidays, and you studied motor mechanics in your later education. You completed national service, and following that you and your family were caught up in the civil war that engulfed your country of origin.
[6] Exhibit 1
20 Since migrating to Australia with your parents and brothers you have worked almost continuously, including as a bus driver from 1990 to 2013. You were married from 1982 to 2007, but separated earlier than that. In 2004 you met Ms Franchuk when she was a passenger on your bus, and you later developed a relationship. You have been living together since 2008, with her adult daughter also part of the household. Ms Franchuk is well aware of the offence for which you have been convicted, as she was called as a prosecution witness in the trial, having met Ms Marten while travelling on the bus to TAFE; a bus driven by you on occasions. Ms Franchuk remains very supportive of you and plans to continue that support during and after your time in gaol.
21 You are now aged 61 years, and I accept that beginning a sentence of imprisonment at your age when you have never committed a crime before will be difficult for you.
22 I take into account that there has been a period of nine years since the end of the time in which any sexual act could have occurred with Ms Marten, and that you have not offended in any way in that time. It is 12 years since the commission of the specific offence of rape for which you have been convicted. There has been a delay in this case coming to a conclusion mainly due to the offence not coming to light earlier because of Ms Marten’s lack of understanding of what you did to her. While that fact cannot mitigate against your crime - because I have found that you used that knowledge of her disability to take advantage of her - the fact that you are being sentenced to a term of imprisonment in your 60s, and not in your 50s, is something that I take into account.
23 Next; I accept that before you were convicted of this offence you were well regarded in the community. You were President of the Social Club at the Nepean Golf Club over the past year and were on the committee for some years before that.
24 There is no evidence that you have any physical or mental health issues, or that you have a psychosexual disorder. In the circumstances of your plea of not guilty, there is no explanation put forward on your behalf for your offending. I have found that you acted to fulfil your own sexual gratification. I find that for you to act in such a way for no apparent reason other than opportunity, and to do so on repeated occasions, means there is a risk to the community that you will re-offend. However, because of your previous good character, your good work history, your age, and the support of your partner, I am satisfied that the prospects of your rehabilitation are reasonable. As a result I find that your risk of sexual re-offending is relatively low.
25 As well as those matters personal to you that I have taken into account, I must also take into account the need for the court by its sentence to denounce your serious offending, and to try to deter other men from sexually assaulting women in the community with whom they come into contact; especially vulnerable women. Everyone should be able to catch public transport safely, and certainly not be at risk from the driver of that transport. There is also a need for the sentence to deter you from re-offending, to the extent that I have found that you represent an ongoing, although relatively low risk to the community.
26 Before I announce the sentence there is one further matter. Application has been made for an intimate forensic sample to be taken from you, and you have consented to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse, or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have consented, if you change your mind I must inform you that the law is that the sample that will then be taken will be a blood sample, and the police may use reasonable force to enable that procedure to take place. Are those draft orders available?
27 MR HENNESSY: Yes they are, Your Honour.
28 HER HONOUR: Yes, if they could be handed up please?
29 MR HENNESSY: I'll hand those up.
30 HER HONOUR: I have received one which is just directed for the sample to be taken, and the other one that directs for attendance at a police station. Should I have three of - - -
31 MR HENNESSY: Sorry, Your Honour, we're handing up some further documentation.
32 HER HONOUR: Thank you, that can be handed back. Yes, stand up please, Mr Sadaka.
33 On the charge of rape, you are convicted and sentenced to seven years’ imprisonment. I direct that you serve a minimum term of five years before becoming eligible for release on parole.
34 I declare that you have already served 25 days in pre-sentence detention, not including today, and I direct that the period be deducted administratively from your sentence. Yes, thank you. Mr Sadaka may be removed.
35 MR HENNESSY: As Your Honour pleases.
36 HER HONOUR: I will stand down now until 10.30.
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