Director of Public Prosecutions v Siwee
[2021] VCC 297
•18 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATAHA SIWEE |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2021 |
DATE OF SENTENCE: | 18 March 2021 |
CASE MAY BE CITED AS: | DPP v Siwee |
MEDIUM NEUTRAL CITATION: | [2021] VCC 297 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to 5 charges of sexual assault and one charge of attempted sexual assault -random assaults on lone women in the street at night – two occasions – traumatic experiences for victims - offender aged 21 – footballer from Papua New Guinea – isolated and lonely – depression – abuse of alcohol – opportunistic offending – no attempt to hide identity – very early plea – almost two years in pre-sentence detention – deportation guaranteed – football program terminated – hopes ended for young footballers in his home region – likely pay-back – extra-curial punishment – pseudonyms used for complainants.
Legislation Cited: Sentencing Act 1991 s.11
Sentence: 23 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | OPP |
For the Accused | Mr L. Richter | VLA |
HER HONOUR:
1Kataha Siwee, you have pleaded guilty to five charges of sexual assault and one charge of attempted sexual assault. These were random assaults on lone women in the street, at night in inner Melbourne. There were six separate incidents, with one charge arising from each.
2At the time you were living with Scott Reid and his family in Richmond. Mr Reid ran the AFL program for Papua New Guinea residents. You were on a three month tourist visa allowing you to play football for the Euroa AFL team.
3On 5 April 2019 at about 10.30 pm, Rita Garner[1], a 30-year-old woman had finished work as a waitress at a restaurant and was walking home along Lord Street, Richmond. Whilst she was looking at her phone, you approached her and grabbed her left breast over her clothing, squeezing it three times in about one to two seconds. She said, 'What are you doing?' You laughed and said, 'Sorry'.
[1]A pseudonym.
4The complainant returned to her workplace and told her manager. She reported it to the police on 18 April. CCTV footage was obtained from a camera in Lord Street, showing you and the complainant and showing the clothes you were wearing.
5The second incident occurred on 14 April at about 1 am. You had been at a community gathering, where you had drunk a lot of alcohol and you told police you were drunk when you left there at about 1 am. At that time, Tabitha Ferguson[2], a 35-year-old woman, was cycling home in Abbotsford. She had stopped her bike on the footpath to read a text message and you approached her, asking her where she was going or what she was doing. She replied that she was going home.
[2]A pseudonym.
6As she walked her bike onto the road, you grabbed the front handlebar and grabbed the complainant in a bear hug. You then aggressively groped her breast for about five seconds. She pushed you and cycled away as fast as she could. She hid in the front yard of a house and rang her friend and reported what had happened. Her friend arrived and found her crying, distressed and scared. She reported the matter to the police on 23 April and gave a description of you, matching your description.
7The third incident was on the same night at 1.45 am when Hanna Day[3], aged 39, was walking towards Burnley Street, Abbotsford. She was a visitor to Melbourne and was trying to book a taxi but was unfamiliar with the exact area.
[3]A pseudonym.
8You walked towards her and she asked you if the street was Burnley Street. You said you thought it was and then grabbed her dress at the area of her vagina with your hand in a cup shape. You failed to touch her there, and as she jumped back, you grabbed her dress near her buttocks. She said, 'Don't touch me', and you walked away. The complainant was crying as she was picked up by a taxi. She reported it to her parents the next day, and to the police on 21 April.
9At 3.20 am that morning, the fourth incident occurred. A 36-year-old woman, Elaine Atkinson[4], was walking from the corner of Swan Street and Church Street towards her home. She had noticed you as she walked past a café when she was about 450 metres from her home. As she placed the key in the front door, you grabbed her from behind in a hug and grabbed her buttocks. She pushed you away and screamed. You said, 'Hey baby', and grabbed her right breast. You then backed away and walked off. The complainant immediately reported this to her housemate and then the police. She described you as wearing a jumper with writing on it, which was later produced to the police.
[4]A pseudonym.
10At 5 am that morning, the fifth incident occurred. Violet Powers[5], aged 28, was walking from a friend's house in Richmond. As she walked past 25 Church Street, you grabbed her in a bear hug and placed your hand under her dress, touching her vaginal area over her underwear for about two seconds. She screamed and hit you for about five seconds until you walked away, leaving her terrified. A woman heard her scream and approached her. The complainant reported what had happened to that woman and later to the police, giving an accurate description of you.
[5]A pseudonym.
11The sixth incident occurred shortly afterwards at 5.20 am. A 35-year-old woman, Ella Snee[6], walking home in Abbotsford after finishing work. You approached her, but with her limited English she could not understand what you said. She did understand your words to the effect that you would give her money if she would make love to you. She said, 'No'.
[6]A pseudonym.
12You pushed her and she fell to the ground. You pulled up her dress and her singlet away from her body and forcefully touched her left breast. She attempted to hit you with you her handbag and screamed, 'Help me'. You then placed your hands down her pants and inside her underwear and touched her naked vagina. Her scream was heard by a passer-by who saw the attack and he yelled, 'Oy', and chased you. He soon returned to the complainant, who was crying and overwhelmed. Both gave accurate descriptions of you to the police.
13The police obtained CCTV footage from a business in Church Street, showing you there, wearing clothes matching those described by Ms Atkinson.
14On 19 April, police received CCTV rolling footage and still images to television channels and social media. Mr Reid saw this footage and asked you about it. He took you to the police station the following morning and you were arrested and interviewed. You told police you could not remember the incidents as you were drunk. You were remanded in custody, where you have remained.
Victim impact statements
15Victim impact statements were provided by three of the complainants.
Ms Ferguson read her statement to the court, describing how she found the courage to fight back and get away from you, which she said was physically exhausting. She still feels angry about it and suffers nightmares, and becomes afraid in the dark, even in her house. She fears that the weight of this will last forever.16From Ms Atkinson's statement, it can be inferred that she is a very resilient woman. But despite that, your attack on her has drastically changed her confidence and independence. Initially, her fear brought on panic attacks, and it was only after learning of your imprisonment that this subsided. Since then, very ordinary every day incidents can trigger the fear, and she is having counselling to try to overcome that.
17In her statement, Ms Garner described her shock and fear, causing her to be unable to walk in the street at night and even in daytime. When anywhere near a man in the street, she puts as much distance between herself and him as she can.
Gravity of the offending
18The terror experienced by each of these three women has been vividly described in these statements, and the other victims describe, in the statements they made to the police when they reported the assaults, the fear they felt at the time.
19They are very serious assaults, perpetrated randomly on women in the street at night and in locations where in most instances no one else was around. Each woman was entitled to be there in safety without any fear of assault. Not only were they terrified then, but the longer term effect upon them of fear and anxiety has been intense. Your actions deserve very strong condemnation by the court to emphasise the message that such behaviour is abhorred and will be punished severely.
General deterrence
20The principle of general deterrence indeed requires that the sentence imposed should deter those who might offend similarly. Assaulting women in the street as you did is a particularly despicable crime and is always deserving of imprisonment, tempered by the particular circumstances of the case, including the offender's personal circumstances and any mitigating factors. I turn to both those matters now.
Personal circumstances
21As to your personal circumstances, you were aged 21 at the time of these offences, and you are now 23. You were born in Papua New Guinea, where you became a champion AFL player. You came to Australia in 2018 to play football with the Euroa AFL Club. Your name had been put forward by Mr Murray Bird, who had been the general manager of AFL Papua New Guinea. He regarded you as the best player of your age group in your country and saw you, in his words, as, ' . . .an excellent role-model for a group of young boys who mostly come from poor families and challenging home situations'.[7]
[7] Reference written by Mr Bird dated 15 February 2021
22A reference provided by Mr John Douglas, a sports manager, mirrors that of
Mr Bird in describing you as quiet and extremely well-mannered, respectful and trusted. He and all those who have written references for you are puzzled over your offending behaviour and found it hard to believe. Indeed, your mother and your wife, in trying to understand why you offended as you did, wondered if you had been led astray by others. Of course, that was not the case. But certainly, alcohol seems to have played at least some part on the second occasion in disinhibiting you from your usual exemplary behaviour. No such explanation applies on the first occasion.23It is also suggested that you were lonely and isolated in Melbourne, a long way from your family, in particular, from your wife, who lives in Boroko, Papua New Guinea. You have been married for six years and have no children, as sadly, your baby died during childbirth in 2018.
24Recently, you were assessed by the psychologist, Mr Cummins, who set out your personal history. You are the youngest of six children. Your father left the family when you were a baby, and your mother brought up the family alone. She is a highly educated woman who works as a business trainer at TAFE in Lae. None of the family have ever been in trouble. Whilst in custody, they have been unable to visit you, and phone calls with your wife have been difficult because of her location.
25You completed Year 11 at school and later attended TAFE, where you achieved a certificate in Information Technology. By this time, you were established as an accomplished footballer, and came to Melbourne in July 2018. While staying with the Reid family in Richmond, you have described being often bored, as you had no employment and your only activities were football training and matches. You have never had a problem with drugs or indeed with alcohol, but you began drinking large amounts of beer alone in your room.
26In your record of interview, you told the police that on the Saturday evening of 13 April, you had been at a party and had a lot to drink. You left at about 1 am to walk home, and you remember arriving home and going to sleep and waking up the next morning at about midday. Later in the interview, after you were shown the CCTV footage of yourself, you remembered that you had left the house again after arriving home and had gone out to try and buy alcohol.
27You told the police in your interview that you were shocked to see yourself on the TV news in a story about the sexual abuse of three women in the street. When the allegations were put to you, you could not remember anything. When the incident which occurred on 5 April was put to you, you said you had not been drinking that night, that you had been in the area, but you could not recall any such incident. At the end of the interview, you said you wanted to apologise to the women and that you did not know what you were doing.
28My conclusion from the material is that it would seem that as your offending on 5 April was not related to alcohol, it is unlikely that this was the whole explanation for your similar offending on 14 April when you had offended after having been drinking at a gathering earlier that evening.
29There is no evidence to suggest that your motive for offending was in any way related to antisocial attitudes towards women. But you told Mr Cummins that you may have offended because being separated from your wife, you were feeling sexually frustrated. As a basis for Mr Cummins' assessment of your risk of reoffending, he considered that this indicated you are at a very early stage of comprehending the effects upon the complainants of your offending and how traumatised they would have been. Despite that, Mr Cummins considers you are at low to moderate risk of reoffending, with the offending having been at least partially situationally motivated and opportunistic.
Mitigating factors
30Although there is no evidence of planning, you repeated the behaviour of 5 April on 14 April, and on that night you repeated it several times over the course of a few hours. It is not credible that you have no memory of the incidents and it appears that you did have some sort of plan that night, as you repeated the offending and escalated the seriousness of what you were doing, knowing it was wrong and illegal.
31There are some factors which will mitigate your punishment, and I turn to those now. Having been arrested on 20 April 2019, you offered to plead guilty to the charges which eventually proceeded, but the offer was not accepted until October 2020. It was a very early plea and there has been some delay because it was not accepted earlier, which I take into account.
32Your plea means you are entitled to a discount on your sentence for having avoided a trial, particularly at a time when trials are very difficult for the court to run, owing to the COVID pandemic. Importantly, you have spared the complainants the ordeal of giving evidence at a trial. I accept it also as an indication of remorse, which you have expressed to others, with the proviso that you perhaps lack proper insight and empathy consistent with some immaturity.
33You have never been in trouble before, and all those people who have written in your support confirm your otherwise good character. You are still a young man, and it is recognised that youth is an important factor in sentencing an offender. It is accepted that immaturity can prevail well into a young man's early 20s and adversely affect his judgment. That seems to be the case here.
34Your time in custody has been difficult, in the sense of being isolated from your family, with no visits and limited contact otherwise, as well as the restrictions placed on all prisoners by the past and current restrictions. You have been concerned for your family in Papua New Guinea, with the higher risk there of being exposed to COVID-19.
35A further consideration is that quite apart from the shame you feel of having offended in this way, you also feel the shame and embarrassment of knowing that the football program you were part of has been terminated because of your behaviour, and on your return to Papua New Guinea, you may be subjected to contempt and revenge from those who could have benefited from the program. The very real anxiety you and your family might feel about their safety for those reasons amounts to a form of extra curial punishment, and I take that into account.
36Once you are released from custody, you will be placed in immigration detention, pending your deportation from Australia. You have already been officially notified of this by a letter from Australia Border Force, dated
30 June 2019. That letter informs you that even if you were released on parole, you would be placed in detention, pending deportation. You had been contemplating the possibility of being able to reside permanently here with your wife, and the dashing of that hope has weighed on you while in custody. The fact that a period of parole will not effectively be available to you means that a head sentence with a non-parole period is an impractical disposition. A straight sentence would be preferable, as indicated by the prosecution, for pragmatic reasons, because of the unusual circumstances of your certain deportation. Under s.11 of the Sentencing Act, this can only be achieved if the sentence is less than two years. The maximum sentence for Charges 1, 2, 4, 5 and 6 is 10 years' imprisonment; for Charge 3, it is five years.SENTENCE
37I sentence you to 12 months' imprisonment for each of Charges, 1, 2, 4 and 5.
I sentence you to six months' imprisonment for Charge 3, and 15 months for Charge 6.
The sentence for Charge 6 is the base sentence for purposes of cumulation. I order that four months of the sentence for Charge 1 and one month of each of the sentences for Charges 2, 3, 4 and 5 be served in cumulation upon the base sentence. That results in a total effective sentence of 23 months.
By my calculation, you have served 698 days as pre-sentence detention. I declare that time to be reckoned as already served, and I shall note that on the court record. Because you have already served 698 days, which is slightly more than 23 months, you will be released immediately into immigration detention, pending your deportation.
38If you had pleaded not guilty to these charges, I would have sentenced you to three years' and six months' imprisonment, with a non-parole period of two years and nine months.
39I note there is no application by the prosecution, as there usually would be, for an order under the Sex Offenders Registration Act on account of your deportation.
40There will be a disposal order for the clothing that you were wearing at the item. I have not got any indication of consent in relation to that.
41MR RICHTER: I did that, Your Honour.
42HER HONOUR: Consent?
43MR RICHTER: Yes.
44HER HONOUR: Thank you. So, I make that order. Now, are there any other matters that I have omitted or neglected, Mr Devlin?
45MR DEVLIN: No, Your Honour.
46MR RICHTER: Not from my point of view, Your Honour.
47MR DEVLIN: Thank you, Your Honour.
48MR RICHTER: As Your Honour pleases.
49HER HONOUR: Thank you. Now, I will leave the Bench, but I will leave the link open just so you can have word with Mr Siwee.
50MR RICHTER: I am grateful, Your Honour.
51HER HONOUR: Thank you.
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