Director of Public Prosecutions v Shaba, Jimmy
[2011] VCC 1657
•23 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00577
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIMMY SHABA |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June, 6, 16 September 2011 | |
DATE OF SENTENCE: | 23 September 2011 | |
CASE MAY BE CITED AS: | DPP v Shaba, Jimmy | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1657 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – Sexual Penetration of a Child Under 16 – plea of guilty not indicative of remorse – link between post-traumatic stress disorder, substance abuse – Verdins – general and specific deterrence moderated – Total Effective Sentence 2 years 6 months imprisonment – non parole period 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.P. Holding | OPP |
| For the Accused | Mr A.D. Halse | McNamaras Solicitors |
HER HONOUR:
1 Jimmy Shaba, you have pleaded guilty to one charge of sexual penetration of a child under 16.
2 In April or May 2009 you met a young man, who for these purposes, I will call MA, through his mother. You started to visit her after becoming friends through your attendance at a café that she worked at. Through MA you met the complainant, who for these purposes I will call RJ. She used to visit MA at his mother's house. She was 15.
3 According to both MA and RJ you told them that they were in danger from a group of men who were jealous of their friendship. On 12 May 2009 you drove RJ to the Formule 1 Motel in Fawkner. According to her you had spoken to her on a number of occasions that day telling her she was in danger. Finally you called her, told her she was in danger and that you would pick her up from her home in your car. She said that you told her that MA would be with you, but he was not.
4 You booked in to the motel leaving the complainant in the car and then took her into the room. The two of you stayed there until about 7.00 the next morning. At some stage you left her alone in the room while you went to buy alcohol. When you returned she drank some, enough to make her vomit. Also at some stage during that evening you had sexual intercourse with her.
5 The following morning you drove her back and dropped her off in a street near her home. When she arrived home she called MA and the two of them went to his mother's house where she immediately disclosed to the two of them that you had sexually assaulted her. Later that day you went to MA's mother's house, the police were called and you were arrested.
6 In her complaint to the police RJ said that the sexual contact between the two of you, the act of sexual penetration, was not consensual. She said that she had been forced to drink alcohol, that you had sworn at her and forced her on to the bed. She said she screamed, but you had muffled her screams with a pillow or your hand and that when you went out she had screamed and kicked at the door and the window and tried to escape from the room.
7 The evidence of the motel manager does not support this. The door and window could not be locked from the outside. No screams were heard. When he patrolled the area at 11.30 p.m. the manager saw the complainant sitting with you apparently happy. In those circumstances the prosecution acknowledges it cannot establish the truthfulness of those parts of the complainant’s account to the requisite standard and does not rely on them as sentencing facts.
8 When questioned by the police you gave an account which is now acknowledged to be false. You said you had left the complainant at the motel at 10 p.m. and gone to work. You said you were a security guard at Melbourne Airport. You are not and you did not go there that night. You said that after work you had gone home and watched erotic movies on SBS. Inquiries revealed that there were no erotic movies shown on SBS that night.
9 You denied any sexual activity with the complainant. She had told the police that you had used a condom which you later threw out the window. The condom was found outside the window where she said you had thrown it and DNA testing of it and the forensic samples taken from the complainant confirmed that you had sexually penetrated her.
10 Although maintaining your denial of sexual activity you told the police that the complainant looked about 14 or 15 and acknowledged that you knew it was unlawful to have sex with a child under 16. You also gave some answers which provide some support for the accounts of MA and RJ; that you had told them that you believed that they were in danger.
11 Nearly two years later on 8 April 2011 you pleaded guilty to the charge of sexual penetration for which I am now sentencing you. That plea was entered at committal mention.
12 The two year delay between your questioning by the police and the committal mention is due in large part to a combination of the time needed to conduct DNA testing on the forensic samples taken from the scene and taken from the complainant and various adjournments that were requested by you.
13 You are entitled to a considerable reduction in your sentence for your plea of guilty and the early stage at which it was entered; that is at committal mention. The plea of guilty clearly has a significant utilitarian benefit advancing the interests of justice generally, but also, and most significantly, given that this is a case of a sexual offence against a child you have spared the victim the ordeal of giving evidence, of having to relive and recount the events and having to suffer the indignity of being challenged on her account.
14 In her Victim Impact Statement RJ says this:
"Since this horrible incident my life has been like one, big, long roller coaster. I've been through hell and back. Nothing compares to the hurt, the pain and hurt I've gone through. I'm angry, frustrated, sad, scared and haunted by all of it. Even now there's nights when I can't sleep, thinking about it frightens me."
She talks about the hatred she now feels for men that she does not know, the fear that what happened to her could happen again or happen to other people. She speaks of her fear of men generally and her disillusion about the circumstances in which it happened. She speaks of feeling unsafe, of having to call her family every 30 minutes while she is out or on the train and her discomfort socialising with friends and family and her fear of having what has happened to her become known.
15 There is a very good reason why the law makes it a criminal offence for an adult to sexually penetrate a child under 16. No matter what level of physical maturity the child may have reached it is clear that children do not have the emotional maturity to make proper and informed decisions about their circumstances and particularly about engaging in sexual contact. It is to protect them from exploitation and to recognise their immaturity that is behind criminalising this behaviour.
16 What she says in her Victim Impact Statement is a very typical account of a child reflecting later on what has happened to her and understanding with a little more maturity and, with the benefit of some hindsight, the consequences for her of not having the care extended to her that society demands be extended to children under 16 in relation to decisions about sexual activity.
17 Your conduct and in the instructions that you have given at various times, since the entry of your plea of guilty to your lawyers and to those treating you, satisfies me that your plea of guilty, although having that significant utilitarian benefit, and that added benefit of sparing the victim the ordeal of reliving the events and of being cross-examined about them, nonetheless is not indicative of remorse. You are not to be punished for that but you do not get any additional benefit that evidence of remorse can give, particularly when assessing prospects for rehabilitation or assessing the weight that needs to be given to specific deterrence.
18 Your counsel Mr Halse in the course of his very careful and considered plea acknowledged that the objective evidence demonstrated the offence had a degree of pre-planning; taking the complainant to the motel, buying her alcohol and using a condom being three of the striking features of that.
19 The actual circumstances, what actually occurred in the room that night, are unlikely ever to be established; certainly they are not able to be established to my satisfaction for sentencing purposes.
20 As the Court of Appeal made clear recently in Clarkson[1] even if I had been affirmatively satisfied that the complainant had consented at the time to the sexual act, consent of a child who is at law not capable of consent is not a mitigating factor.
[1] [2001] VSCA 157.
21 Dealing now with your personal circumstances. It is a little difficult to ascertain them accurately as the reports, to which I will refer shortly, make clear you are generally described as a poor historian. Extracting as best I can from the accounts recounted in those reports it seems to be the following or the salient features seem to be the following. You are now 40. You are originally from Iraq. Your family suffered persecution there as Christians living in a largely Muslim area in Baghdad. At the age of 13, along with your father, you were kidnapped and tortured. You were released after three days having been subjected to significant physical and emotional abuse and perhaps even to sexual abuse.
22 You have given varying accounts of what happened to you and of your father's fate. Whatever happened to you, whatever happened to him and whatever you witnessed during that terrible time your father was never seen again.
23 The rest of your family, your mother and your six siblings, eventually found your way to a Kurdish area in the north and then when you were in your late teens your mother arranged for you to go to Greece. You remained there until the age of 26 when a brother of yours who had already safely made his way to Australia sponsored you here.
24 Your schooling was severely interrupted in Iraq and finished prematurely. It was brought to an end at the age of 13 following your kidnap and your family's subsequent departure from Baghdad.
25 Whilst in Greece and in Australia you have had some periods of employment but also significant periods where you have not been employed.
26 You have lived with your mother since she arrived in Australia five years ago. I am told that all of your family are now here, but that you have no contact with any of them except your mother.
27 You are currently on a carer's pension, responsible for your mother who has poor health generally and currently has limited mobility whilst she awaits surgery on her knee.
28 When assessed by Forensicare you told them that you did not drink alcohol until you came to Australia, but that your drinking quickly escalated until you were drinking daily and in significant amounts, at times resorting to drinking methylated spirits if you could not afford anything else. You reported that you had been hospitalised on a number of occasions due to excessive alcohol consumption. You report that you are now alcohol free since you had a thyroid operation in February of this year.
29 You also reported to Forensicare frequent drug use in the last three years, but again stopping after the thyroid operation. During the period that you were taking drugs you told them that they included cannabis on a very regular basis, methylamphetamines on most weekends and at times cocaine and heroin.
30 You also told Forensicare that you had attempted to take your own life three times, although you were unable to provide them with any information about when those occasions were or whether you had had any treatment as a result. You have at various times sought and been amenable to psychological assistance for drug and alcohol abuse.
31 There was some limited material when the plea was first presented to me suggesting that your culpability may have been affected by a combination of your level of intellectual functioning and the effect of the thyroid condition from which you had suffered from some time, that is Graves' disease, and the effect of those two matters on your capacity to reason. At that stage it was not clear whether you were suffering symptoms of the thyroid condition at the time of the offending.
32 There was also some evidence suggesting that your culpability may have been affected by the post-traumatic stress disorder which has been diagnosed at least since you have been in Australia and which seems to be attributable to the traumatic experiences to which you were exposed during your kidnap and torture at the age of 13.
33 The plea was adjourned in order for those issues to be explored and for a pre‑sentence report from Forensicare to be obtained.
34 On the return of the plea materials were provided to the Court that satisfied me that at least for some months before the commission of the offence you had been treated for symptoms of thyroidtoxicosis, secondary to the Graves' disease from which you suffer.
35 Your treating physician Dr Simon Forehan said that as well as a number of unpleasant physical symptoms, including tachycardia, weight loss, heat intolerance, sweating, weakness, diarrhoea, anxiety and tremor, that the thyroidtoxicosis effected your concentration and ability to perform complex tasks both physically and cognitively.
36 A neuropsychological assessment was conducted by Dr Ian Stewart. He concluded that you suffered post-traumatic stress disorder as a consequence of the arrest, torture and detention in Iraq at that age of 13. His tests of your cognitive functioning indicated that you are of low average intelligence but that you performed very poorly on tests of your cognitive functioning. You demonstrated a severe impairment of working memory caused by poor concentration and a slowing in speed of information processing.
37 When he tested you your problems of concentration affected your performance on a range of tests of memory causing, what he described as, a severe impairment. He excluded traumatic brain injury as a possible explanation for this, but based on the test results he concluded that those poor results were due to the effects of the thyroidtoxicosis and your psychiatric condition by which I understand he meant the post-traumatic stress disorder.
38 In his opinion those factors, together with medication would have been influencing your mental state in the hours leading up to the incident. He said his impression was that you had been in a disturbed emotional state for some years and that the thyroidtoxicosis would have added an organic element to your psychiatric condition.
39 Based on that he concluded that your judgment and control would have been affected to a significant degree. He said the combination of influences were so unusual that it became difficult to imagine the extent of your disturbance and your ability to appreciate the situation that you were in. He said that if the effect of alcohol was also taken into account your judgment and understanding of the situation would have to have been seriously compromised.
40 There are some difficulties, not in relation to the tests conducted by Dr Stewart or the results from them, but from the conclusions that he drew from them. First, as acknowledged, you are a very poor historian and the account recounted by Dr Stewart differs in some material respects from the accounts in the depositions, in the agreed summary and what was put to me as to your instructions on the plea and what you told Forensicare.
41 There is no evidence before me that you were impaired by medication, illicit drugs or alcohol at the time. Impairment by medication or alcohol or illicit drugs of the sought posited by Dr Stewart and framed in terms of in the hours leading up to the incident does not sit comfortably in my view with the evidence which is acknowledged demonstrates pre-planning.
42 I accept Dr Stewart's findings based on his assessment of your cognitive functioning; that is your level of intelligence, your impaired working memory due to your poor concentration and also his opinion that you suffer from post‑traumatic stress disorder. However it does not follow in my view that your judgment and control would have been affected or that your judgment and understanding of the situation would have been compromised.
43 This brings me to the Forensicare assessment. The authors acknowledged that the assessment was a difficult task. They found you to be a poor and erratic historian both as to personal history and in relation to the circumstances of the offence. You were unable to answer many questions, unable to recall details and often provided information you would later contradict. You initially told them you had no memory at all of the events. When it was suggested to you that that might mean the complainant's account was true you started to reveal details which were in contradiction to hers. The truthfulness of your initial assertion you could not remember what happened that night is clearly something to be doubted.
44 Based on your reported symptoms they concluded that you have experienced a number of symptoms associated with severe and chronic cases of post‑traumatic stress disorder. Your reported symptoms were also consistent with a diagnosis of major depressive disorder including low mood, poor appetite, difficulty sleeping, poor concentration and recurrent suicidal ideation.
45 Finally they noted your report of a significant history of polysubstance abuse particularly alcohol and cannabis. In their view that meant you would also meet the criteria for alcohol dependence, cannabis abuse and possibly substance abuse as well.
46 They noted that on your account you have not used drugs or alcohol since your thyroid operation in February of this year and therefore noted that the specifier early remission would also be applicable.
47 They said, and I accept, that it is difficult to determine the current severity of your post-traumatic stress disorder and depressive symptoms. That is in part because many of those that you report are also consistent with the mental state changes that can occur with thyroid problems. This they note is relevant to your future treatment as a sustained period of abstinence and physical stabilisation should make it easier to determine the extent to which your mental state has been influenced by your thyroid condition and substance use.
48 They noted, and I accept, that the post-traumatic stress disorder would not have had a direct relationship to this offence, but that the heavy use of substances at the time is likely to have been a contributory factor in that it would have impaired your judgment and decreased your inhibitions.
49 Your inconsistent and at times patently untruthful accounts were sought to be explained by reason of your memory impairment, substance abuse, poor physical and mental health and misunderstandings due to language difficulties. I do not accept any of those explanations.
50 I accept the Forensicare opinion that there are serious doubts regarding the veracity of the claimed severity of your memory impairment. That opinion was based on the tests that they administered designed to assess precisely that.
51 Forensicare concluded on the basis of the information obtained from you in interview, the results obtained after administering the RSVP test, the Risk for Sexual Violence Protocol, and their psychometric testing that you pose a moderate risk of engaging in recidivist sexual violence and that risk was elevated if you resumed the use of alcohol or illicit drugs. They noted you do have some protective factors that reduce your risk of reoffending, in particular what they describe as your expressed concern for your mother's welfare and your fear of going to prison. I accept that assessment.
52 There was nothing in my view in the Forensicare report to provide any support for the proposition that your moral culpability is reduced by reason of the post-traumatic stress disorder, depressive symptoms or the effect of your thyroid condition. There is no causal connection established between any of those matters and the circumstances of the offending.
53 I accept that if you were impaired by alcohol or illicit drugs that could have impaired your judgment or disinhibited you. Even if that were the case, and the materials before me do not permit a finding one way or the other, in the circumstances of this offence I do not consider an impairment of judgment by reason of substance abuse to be mitigatory.
54 Nor do I consider your moral culpability to be reduced by reason of your level of intelligence as assessed. Despite the difficulties encountered in testing your intelligence I am satisfied appropriate adjustments have been made for your poor concentration and for the cultural assumptions in the standard tests administered in Australia which disadvantage people who grew up in different cultures, whose formal education was disrupted and cut short, and for whom English is not a first language.
55 You are assessed to be of average intelligence. Although you fall in the lower part of the band of average it is not correct to describe you as being of low intelligence. It is clear that you do not suffer from an intellectual disability. Nor do you suffer an acquired brain injury.
56 Mr Halse submitted in reliance on Verdins that the combination of the post‑traumatic stress, depressive symptoms, thyroid condition and low intelligence operated to reduce the weight to be given to general and specific deterrence. He submitted they also bore on the type of sentence to be imposed and the manner in which it should be served and that as a result of those conditions imprisonment would weigh more heavily on you than a person in normal health and also there was a risk that imprisonment would adversely affect your mental health.
57 I do not consider that your level of intelligence brings any of these principles in to play. Although the evidence does not permit me to make a finding substance abuse was a contributing factor to the offending I accept that there may be some relationship between your post-traumatic stress disorder and reported substance abuse and that substance abuse may contribute to your risk of reoffending.
58 I consider therefore that the link between the substance abuse and the post‑traumatic stress disorder means that general and specific deterrence should be moderated by reason of that.
59 Mr Halse, acknowledging that no sentence other than imprisonment was appropriate, submitted that this was an exceptional case by reason of these features justifying the imposition of a fully suspended sentence. He relied in particular on the following matters: your level of intelligence; your limited education and the consequences of not being a native English speaker; the experiences to which you were subjected at the age of 13 and the fact that you still suffer the effects of that today; post-traumatic stress disorder and its connection with the major depressive symptoms from which you suffer and your suicidal ideation. He also submitted that you had reduced moral culpability by reason of the combination of the post-traumatic stress disorder, major depressive symptoms and the thyroid condition. Finally, he relied upon your responsibilities as carer for your mother.
60 I disagree that this is a case where exceptional circumstances exist. I have already expressed my reasons for finding your moral culpability is not reduced and that your level of intelligence is not at a level which demands or requires different considerations. It is clear that your mother is not totally or solely dependant on you. Apart from producing proof that you were in receipt of a carer's pension no evidence was put before me as to the role you played. What has been put before me as to your erratic life indicates that there must be periods where she must manage without you and no evidence was put before me to suggest that you were the only person on whom she could rely. Nor was evidence put before me to suggest that she, whilst needing some help, was going to be seriously disadvantaged if you were not available to assist her.
61 I do not consider your educational disadvantages or the fact that English is not your first language bear on the matter. You have at times whilst in Australia been able to hold down employment. From what you told Forensicare your employment has generally ceased because you did not like the work or broke rules such as smoking on the job. You are well able to communication in English. You did so with RJ, you apparently act as an interpreter for your mother and you had no difficulty expressing yourself with Dr Stewart, Forensicare, your other doctors or counsellors or, in my view, with the police in your recorded interview.
62 The remaining factors relied on by Mr Halse, although demonstrating that you deserve compassion, do not in my view amount to exceptional circumstances justifying in the interest of justice the imposition of a fully suspended sentence.
63 This is a serious offence. It had, as Mr Halse acknowledged, a number of features of pre-planning. The age disparity between you and the complainant was significant; she was only 15, you were 37. As Forensicare noted you show no remorse and you are still blaming the victim.
64 Just punishment, denunciation and general and specific deterrence, although moderated for the reasons I have already identified, are significant sentencing factors.
65 I consider that your prospects for rehabilitation are reasonable particularly if you remain substance free. This is your first sexual offence. You have not committed any offences in the time between charge and sentence.
66 Your prior convictions are essentially convictions relating to dishonesty, obtaining social security benefits not payable, a driving offence and various failures to comply with court orders; CBO's, and bail and the like. Apart from making it clear you are not to be treated as a first offender in my view they have little relevance to the circumstances for which I have to sentence you.
67 Relevantly to your risk of reoffending and your prospects for rehabilitation, Forensicare recommended that you undergo treatment to address your symptoms of post-traumatic stress disorder and depression and also to undergo a specialist drug and alcohol treatment program for your substance abuse. They also recommended that you receive offence specific treatment that would assist you to develop insight into your offence, to accept responsibility for your own behaviour, to develop victim empathy and to develop relapse prevention plans.
68 They consider that you are likely to gain greater benefit from individual therapy rather than the generic group program offered by Corrections to convicted sex offenders. In their view individual therapy would enable you to be challenged when necessary and could be tailored to take into account your other psychological and physical problems. So far as the individual therapy is concerned they noted that such treatment was available in the community through the Forensicare Problem Behaviour Program.
69 All these recommendations in my view are sound and I support them. I have structured the sentence, in particular the gap between the head sentence and the nonparole period, in order to give every opportunity for Corrections to assess you for suitability for participation in these programs, whether in custody or upon your release, and to provide them to you. I hope that you avail yourself of the opportunity to participate in such programs as are offered to you and so take your part in significantly reducing your risk of reoffending.
70 Forensicare has also recommended that given your current mental state, your past report of suicide attempts and the explicit threat you had made to kill yourself if you went to prison that Correctional Services be made aware of the risk of self‑harm if you are sentenced and that your mental state be closely monitored by regular assessments by mental health clinicians.
71 I direct that this recommendation be noted on your record and a copy of the Forensicare report again to accompany you on your return to prison. I have taken these matters into account in assessing the sentence and the effect of imprisonment upon you.
72 Can you now please stand, Mr Shaba. On the charge of sexual penetration of a child under 16 to which you have pleaded guilty you are convicted. You are sentenced to be in prison for a period of two years and six months. I fix 12 months as the period that you must serve before being eligible for parole.
73 I declare that you have spent seven days in pre-sentence detention and direct that that be reckoned as part of the sentence already served.
74 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of three years and nine months and I would have fixed a period of two years as the time you must serve before eligibility for parole.
75 Application has been made pursuant to s.464ZF for retention of the forensic sample obtained from you. That is not opposed. I consider it appropriate in the circumstances, having regard to the nature of the offence and to your conduct, to make that order.
76 Pursuant to the Sex Offenders Registration Act 2004 you have been convicted of one Class 1 offence, that is a sexual penetration of a child, and therefore pursuant to s.34(1)(b) you are required to be placed on the register for a period of 15 years. That is correct, isn't it, Mr Holding?
77 MR HOLDING: Yes, Your Honour.
78 HER HONOUR: I am now going to have provided to you a document setting out your reporting conditions under the Sex Offenders Registration Act. I will ask Mr Halse or Mr Lim to accompany my associate to the dock and when it is given to you to ask you if you wish to sign a receipt acknowledging that it has been provided to you. It is not necessary to go through all of the reporting conditions at this stage, but just to make sure that he understands what it is he is being given. Just while that is being done are there any further orders, Mr Holding?
79 MR HOLDING: No, Your Honour.
80 HER HONOUR: It's not necessary to go through the conditions at the moment. All that is required is for it to be given to him and to see whether he wishes to sign a receipt acknowledging that it has been provided to him.
81 MR HALSE: Yes, Your Honour. Thank you, Your Honour.
82 HER HONOUR: Mr Shaba, the law requires me to impose that period of 15 years under the Sex Offenders Registration Act. I have no discretion in respect of that. It is also the law that imposes all of the conditions that are on that list that has been provided to you. I have no doubt that Mr Halse and Mr Lim will explain them to you after I have left the court. I note that you have signed a receipt acknowledging that you have been provided with a list of your reporting conditions.
83 No further orders, Mr Halse?
84 MR HALSE: No, Your Honour.
85 HER HONOUR: Right, thank you. Could you remove Mr Shaba please. Did you hear what I said about you need to wait for a further copy of the Forensicare report to be provided so it accompanies Mr Shaba back to the prison, so he's not to leave until that has been provided.
86 SECURITY OFFICER: Thank you, Your Honour.
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