Director of Public Prosecutions v Sheikh

[2022] VCC 427

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT WODONGA

CRIMINAL JURISDICTION

CR-20-00410

DIRECTOR OF PUBLIC PROSECUTIONS

v

UMAR SHEIKH

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Wodonga
DATE OF HEARING:	17 January 2022, 10 & 29 March 2022
DATE OF SENTENCE:	29 March 2022
CASE MAY BE CITED AS:	DPP v Sheikh
MEDIUM NEUTRAL CITATION:	[2022] VCC 427

REASONS FOR SENTENCE

---

Subject:Plea – sentencing

Catchwords:            Causing serious injury recklessly - rape

Legislation Cited:    

Cases Cited:

Sentence:8 years & 4 months' imprisonment, 5 years & 4 months' non-parole

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Papa Hughes Lawyers

HIS HONOUR:

1Umar Sheikh, you have pleaded guilty to two charges: Charge 1 being causing serious injury recklessly, which carries a maximum term of imprisonment of 15 years; and an offence of rape, which consists of a rolled-up charge involving two acts of rape.  That offence carries a maximum term of imprisonment of 25 years. 

2Both offences occurred during the period of 3 and 4 May 2019, although I apprehend from the way in which the case is put that the events the subject of the charges are likely to have occurred on 4 May 2019.

3The prosecution has filed and served a summary of prosecution opening for plea, which is Exhibit A, together with an annexure which contains, amongst other things, photographs that you took on your mobile phone of the victim shortly after the offence the subject of Charge 1 had been committed.

4The prosecution also tendered and relied upon Exhibit C, which is an outline of prosecution plea submissions in response to the submissions filed on behalf of yourself by your counsel.  Today the prosecution tendered a victim impact statement, which has not been read to the court but which sets out details of the impact that the offending has had upon your victim.  That is Exhibit D.

5Dealing briefly with the facts of the case.  In March or April 2018 you moved in with the victim after a relationship which had been in existence for a year or two prior to that.  That relationship continued until about November 2018, when the victim moved out of your address as a result of arguments between you.  However you continued in a relationship, visiting one another.

6On Friday 3 May 2019 you asked the victim to go over to your house after work.  She finished work at 10 pm and arrived at your home at about 11.30 pm.  You spent time together relaxing on the bed in your bedroom at the premises and having some food.  You then asked the victim to have a shower with you.  She declined and you continued to pester her to have a shower with you.  Eventually the victim told you that she wanted to end the relationship and an argument followed.  The argument, at least in part, was heard by at least one of your housemates.

7As the argument continued you became very angry and you said words to the victim to the effect that you would hurt her.  She kept pushing you away and saying that she wanted to break up.  You then punched her in the face on her chin.  She immediately felt pain and could feel blood in her mouth.  She covered her mouth with her hand and turned her body and lay face down on the bed.  You continued to punch the victim to the right side of her face as she lay in this position.  You punched her, according to her, some five to 10 times as she sought to protect herself.  You then grabbed the victim around the neck with both hands and pushed her down into the bed, compressing her neck and choking her.  The victim was in pain and indicated that she felt she could not breathe.

8After you released the pressure from the victim's neck and withdrew your hands the victim continued to lie face down on the bed, crying.  You were heard to say 'oh, shit' many times.  You then went to the victim and starting checking her mouth.  You made her open her mouth and you checked inside.  She told you that her mouth was broken and she could feel that her bottom teeth were out of place.  Her face was swollen.  About 15 to 30 minutes later you told the victim that she could not go to work the following day because of how her face looked.  You were obviously concerned that you might get into trouble if it became obvious to others that she had been assaulted by you.

9After checking her face a second time you took some photographs, using your phone, of injuries to her face and of the victim lying on your bed.  At this stage she was wearing jeans and a dark-coloured shirt.  She asked you to take her to hospital.  You refused, indicating that if you acceded to her wish you would get into trouble.  You then lay down next to the victim on the bed.  She fell asleep.  She was unaware of how long she had slept, but she was awoken suddenly by you trying to have sex with her.  She waved her hands at you and said 'no'.  She told you that her face and teeth hurt and her mouth was still bleeding.  Your response was to tell her that the pain she was feeling was not related to her vagina, so it was okay for you to have sex with her.  You then put spit on your hand and rubbed the outside and inside of the victim's vagina.  She made a noise like a groan to indicate that she did not want to have sex.  You responded by saying words to the effect that if she did not let you have sex with her you would continue with what you had done to her.  In other words, that you would give her more of the same in terms of assaulting her as you had done some minutes earlier.

10As you entered her and had sexual intercourse with her she lay still, as she described it, like a doll.  You eventually ejaculated onto her stomach and wiped the semen away with tissues.  You then lay down next to her on the bed and set the alarm for 10 am so that you could wake at about that time and the victim could call in sick to her work.

11You both woke up at 10 am on 4 May.  You sent a text message to your victim's boss, telling him that the victim was in hospital with a fever and she would be unable to attend work.  Sometime after that message you approached the victim again, put your hands on her knees and pushed her legs apart.  For a second time, you spat on your hand, rubbed the inside and outside of her vagina and penetrated your victim's vagina with your penis.  You continued to have sex with her until you ejaculated on her stomach.  You again wiped the semen from her stomach with tissues and put those tissues in the bin.  The victim just lay there, “like a doll”.

12I pause to say that it must have been very obvious to you on each of those occasions that she was not consenting to have sexual intercourse with you following that violent assault upon her preceding the first of those rapes.

13She remained at your premises throughout most of 4 May 2019.  You attended one or more stores in order to find some painkillers, food and other pharmaceutical items that might ameliorate the pain caused by the assaults that you had perpetrated upon her.

14At about 8 pm on 4 May you went to the bathroom to have a shower and the victim - after checking that you were indeed having a shower - made good her escape.  Your response to that was to send her text messages.  Indeed, over the next day or three there were a number of text messages that you sent to her which were designed to entice her to return to you and to beg her not to go to the police, claiming that it would ruin your life.  Yet you did not dispute the offending conduct upon her including the rapes.

15The text messages as a whole, which are part of Exhibit B, reflect a self-centred regard for your own position rather than a genuine concern for your offending and the effect of your offending upon your victim.  Your response to the offending was to save yourself, if you possibly could, which was further reflected in the fact that you left Melbourne and went to Queenscliff, apparently in order to avoid the attention of police.

16On Thursday 9 May you were arrested at the BIG4 Beacon Resort in Queenscliff and you were brought back to Melbourne.  You were interviewed by police and provided no comment to questions about your offending conduct.

17The offence of rape is a standard sentence offence. The standard sentence under s38(3) of the Crimes Act 1958 is 10 years.

18I take into account the content of the victim impact statement which, I might say, is remarkably generous to you, given the nature of the offending.

19I now turn to matters personal to you.  You were 35 years of age at the time of the offending, and you are 37 years of age now.

20Your counsel provided me with an outline of submissions for the plea hearing - they are Exhibit 1.  I was also provided with a copy of a report from Warren Simmons, psychologist, dated 16 February 2022 - that is Exhibit 2 - and a statement of attainment and a number of certificates that you obtained as a result of doing rehabilitative courses during your period in custody on remand – Exhibit 3.  I was also provided with some references, including a letter from your parents, which comprise Exhibit 4.  They speak of another side to you.  I was also provided with two letters, apparently in your handwriting and under your signature - Exhibit 5 - one of those to your victim and the other addressed to this court.  I find that practice is one to be discouraged: the writing of letters that are designed to persuade the court that you are remorseful in circumstances where you have not been prepared to go into the witness box, take an oath or affirmation, give evidence and submit yourself to cross-examination.

21I give those letters - Exhibit 5 - very little weight, just as I give very little weight to the expressions of remorse which you have made to the persons who wrote letters in Exhibit 4 and to Warren Simmons, as reported in Exhibit 2.

22I note in Mr Simmons' report that your description of your offending goes nowhere near a full and frank admission of your conduct.  On page 5, paragraph 25 of Mr Simmons' report, he sets out what you said to him about your offending as follows:

'Mr Sheikh stated he is pleading guilty to the current offences and agrees the summary is essentially correct.  He added that he did hit [the victim], although he acknowledged that this was in anger and said that he did not initially know he had caused so much damage.  With regard to the sexual activity, Mr Sheikh initially believed that it was consenting but understands that [the victim] may not have perceived it that way despite what occurred, acquiescing out of fear'.

23Now, that is plainly an explanation which falls well short of admitting, even to Mr Simmons, the truth of what occurred, of your state of mind and of your motivations. 

24Mr Simmons helpfully sets out a good deal about your background.  He describes your upbringing and what you said about your upbringing, which you described as a 'good experience'.  It seems that you had a good education.  You have tertiary qualifications and indeed you came to Australia in 2014 to undertake a Master's degree in computer science at Swinburne University and to undertake a professional year program building upon a Bachelor of Computer Science in Software Engineering which you completed in Pakistan over a period of five years.  Your parents live in the United States of America.  You spent a good deal of your childhood and your schooling in the United States, leaving in 2007 in circumstances where you had been questioned about some alleged offending in that country.  It seems you have never returned to the United States of America since then, having spent between 2007 and 2014 in Pakistan, living with one or more grandparents.

25You have no issue with substance abuse, although you may have dabbled in both alcohol and cannabis use.  According to Mr Simmons, there is no evidence that you suffer from a mental disorder, though he adds:

'… there were some suggestions that Mr Sheikh struggles with
self awareness'.

26It seems to me that you have had every chance in life.  You are a well-educated man with intelligence and without any excuse or adequate explanation for serious offending of this kind.  That said, you have no prior convictions and, as your counsel put to me, your prospects of rehabilitation would therefore seem to be, as he described it, 'fair'.  I accept that submission.

27He relies also on the fact that you pleaded guilty.  It is his submission that that indicates remorse.  I do not accept that it is consistent with remorse, but there is no evidence that is persuasive to me that you are genuinely contrite and remorseful.  There is no doubt, however, that your guilty pleas carry very significant utilitarian benefits for the community and, ultimately, for saving your victim the ignominy of having to give evidence in a criminal jury trial.  Although I note that she was required to give evidence at the committal proceeding and that up till the time of indicating your plea of guilty at a late stage your defence was self-defence, all of which underscores the point that I find no persuasive evidence of any contrition or remorse.

28Your counsel rightly points out that you have no criminal history.  He rightly points out that you have been in custody throughout the period of the COVID pandemic and therefore your time in custody up to date has been unduly harsh.  You have been restricted in communicating with your parents and others.  That needs to be reflected in a substantial reduction of sentence, noting of course that the pandemic continues and the harsher conditions in custody continue.  That also needs to be taken into account in determining the appropriate sentence.  You may accept that, for your pleas of guilty and for the harsher conditions of your custody, I make a significant reduction in the sentence that I would otherwise have passed.

29I accept that you have had a solid work history and that you have good employment prospects upon release.  I note that you have the support of your parents and it seems you have exhibited other good personal qualities, which are reflected in the references that are contained in Exhibit 4.

30Your counsel accepts that a term of imprisonment is inevitable.  He points out that at the conclusion of your sentence there is every prospect that you will be deported either to Pakistan or to the United States of America and he submits that that prospect will weigh on your mind and make your time in custody more onerous.

31Ms Warren, for the Crown, raises dispute about that.  However it seems to me that the prospects of being deported from Australia in circumstances where you have spent a number of years here and have continued with your tertiary education here, and which potentially might offer you good prospects of employment as against being deported to either Pakistan or the United States of America, may indeed weigh heavily on your mind during your period in custody.  Therefore I am prepared to take that into account, although not to reflect in a substantial reduction in the appropriate sentence.

32Ms Warren, in her responding submissions, points out the seriousness of your offending, and that both offences occurred in circumstances of family violence.  She points to a number of objective factors which bear upon the seriousness of the offending:

-    The offending occurred in the context of an intimate relationship. 

-    Your attack upon your victim was in response to her stating that she wanted to end that relationship.  

-    You punched the victim to the face multiple times while she lay face down, trying to protect herself, and defenceless. 

-    You strangled her, causing her to feel that she could not breathe. 

-    You raped her on two separate occasions in approximately a 10-hour period following the brutal assault that you perpetrated upon her. 

-    You raped her when she was in extreme pain and at a time when she had a fractured lower jaw. 

-    The seriousness of your victim's injuries would have been obvious to you. 

33You may not have been able to diagnose the precise injury to her lower jaw but it must have been obvious to you that it was a serious injury.  Indeed your responses at the time would suggest that you thought you were in serious trouble for causing those injuries.  Therefore you must have realised that you had caused serious injuries to her.

34Despite your awareness of those serious injuries you raped her twice.  When the victim protested to the first rape and told you that her face and teeth hurt and that her mouth was still bleeding, rather than desist you responded to that pain by suggesting that there was no related pain to her vagina and therefore no reason why she should not submit to sexual intercourse.  I note that you also threatened her with another assault upon her if she refused.

35You took several steps to conceal your offending, initially by trying to persuade your victim, by appealing to her better nature, not to report you to the police.  This was a callous, self-centred and cowardly attack upon a defenceless woman which deserves substantial punishment.

36Most importantly, as the appellate authorities indicate in circumstances such as these, where family violence is involved and where a domestic partner takes advantage of their greater strength to cause violence within that relationship in response to the defenceless partner indicating that they wish to terminate a relationship, there is a high degree of need for sentences which pay proper respect to the principle of general deterrence, that is, deterring others from committing offences of that nature.  It is necessary also for the court to denounce your conduct in the clearest possible terms and to impose just punishment.

37Given your response to your offending, there is also a degree of need for the sentence to reflect the principle of individual deterrence, that is, deterring you from committing further offences of this nature.  Although I note, of course, that you have no prior convictions.  I accept that your prospects of rehabilitation are fair and I will reflect the fact that there is also a need to promote your rehabilitation in the sentence that I impose.

38Considering all those matters I am ready to impose sentence upon you.

39Umar Sheikh, for the offence of recklessly causing injury the subject of Charge 1, I convict you and sentence you to 28 months' imprisonment.

40For the charge of rape involving two acts of rape, the subject of Charge 2, you are convicted and sentenced to imprisonment for 84 months, that is, seven years.

41I order that 16 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, which makes a total effective sentence of eight years and four months.  

42I order that you serve a period of five years and four months' imprisonment before being eligible for parole.

43I declare that 1,055 days of pre-sentence detention be reckoned as time served on the sentence that I have imposed and deducted from that sentence administratively.

44I declare that, but for your pleas of guilty, I would have sentenced you to imprisonment for a period of 11 years and two months with a non-parole period of seven years and six months.

45I make the forfeiture order in the terms of the draft that I have received, noting as I do that the prosecution has indicated a willingness to provide you with the information contained on the phone that is personal to you and is otherwise unobjectionable in terms of returning the material to you. 

46Are there any other matters, counsel?

47MR KOZLOWSKI:  No, Your Honour.

48MS WARREN:  No, Your Honour.

49HIS HONOUR:  Thank you.  Adjourn the court please.

---