Director of Public Prosecutions v Wai

[2019] VCC 513

IN THE COUNTY COURT OF VICTORIA

Revised

           Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01788

DIRECTOR OF PUBLIC PROSECUTIONS

v

FREDERICK WAI

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JUDGE:	HER HONOUR JUDGE FOX
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7 December 2018, 30 January 2019, 10 April 2019
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Wai
MEDIUM NEUTRAL CITATION:	[2019] VCC 513

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley (Trial) Mr. J. Jasser (Plea)	Ms B. Yildiz
For the Accused	Mr S. Kennedy (Trial) Mr N. Goodfellow (Plea)	Ms R Greensill Ms S. Sawant

HER HONOUR:

1Mr Wai, on 7 December 2018 you were found guilty by a jury of one charge of common assault (being Charge 1) and one charge of assault with intent to commit a sexual offence (being Charge 3).  You were acquitted of the more serious charge of attempted rape, which was Charge 2.

2The victim in this matter was a young woman.  She was new to Melbourne and did not really understand the train system, and accidentally ended up at Footscray railway station after the trains returning to Melbourne had stopped.  Thus she was alone at the station waiting for the first train, which was not until 5 am. You approached her at about 2:15 am and started talking to her.  She found you strange and did not like the way you were talking, so moved away.  You followed her and would not leave her alone.  She returned to sitting on a bench, and you sat next to her and stroked her back.  She told you to leave her alone and got up and walked away.  You continued to follow her.  CCTV footage from the railway station shows her moving away from you and you following her on a number of occasions around Footscray railway station.

3At one point you grabbed her and attempted to hold her arm.  This can be seen on the CCTV footage.  Although you pleaded not guilty to this offence, your counsel effectively conceded to the jury that it was proven.  The victim broke free when you attempted to grab her, and can be seen trying to wave for help in front of the CCTV cameras.  At one point she threw her mobile phone at you in an attempt to stop you following her.  She then made her way to the foyer area and went to a payphone to call 000, but dropped the payphone as you advanced.  You then placed her mobile phone on the ground and she retrieved it.  She used her phone to call emergency services and was able to speak to them briefly.

4You continued to follow her and cornered her, grabbed her and threw her to the ground.  You got on top of her and said things like, “Just take it”.  You tried to pull down her pants and she was trying to fight you off.  She was screaming so you put your hand over her face at one point to muffle her.  She said it looked like you were trying to undo your own zipper.

5At this point, two police officers arrived at the station and heard a female screaming.  Constable Bradley was the first to observe the scene and he saw you on top of the victim.  Your right hand was on her upper body, and it looked to him as though your left hand was trying to remove her jeans.  Constable Tenance was about a meter behind.  She said the victim was screaming and terrified, and you looked surprised to see the police.  She saw your hands around the victim’s chest area.

6You participated in a record of interview and denied the offending.  Among other things you told the police that the victim started screaming and threw a bottle at you, and you were just trying to hold or block her.  You told police you were trying to control the situation because she was furious.  You told police she lured you to the corner and said, "I will do anything you want, you can take my pants off".

7You gave evidence at trial in a similar vein to your record of interview.  You swore that she was attacking you, all you were doing was restraining her, then you both fell down and the police came.  You also said that she then told you you could do whatever you wanted.

8Consistent with the verdict, I am satisfied the jury rejected your version of events - both your record of interview and in the evidence you gave in court.  Consistent with the jury verdict, I am satisfied of the following:

·You first approached the victim at the railway station at approximately 2.16 am, and followed her around in the way she described.  This is seen in part on the CCTV footage.

·You grabbed her on the arm as seen on the CCTV footage, and this is the basis for the conviction on Charge 1.

·After she had rung 000, you continued to follow her until she was cornered.  You grabbed her and threw her to the ground, onto her back, and got on top of her.

·You were saying things to her like, "Just take it, it’s okay just take it".

·You commenced trying to undo her jeans.  At one point you covered her mouth to stop her screaming.

·Your assault on her ended because two police officers arrived about a minute or two later, at approximately 3 am, and intervened.

·At the time you assaulted her, you were intending to commit the sexual offence of rape.  That is, you were intending to place your penis in her vagina.  That is consistent with how the prosecution put its case on Charge 3, and how the jury were directed.

9In relation to both offences, but more relevantly Charge 3, you ran a trial and were found guilty.  You must of course not be punished for that, but there is no remorse and no acceptance of responsibility by you, and there is no discount for a plea of guilty.

10The maximum penalty for common assault is five years' imprisonment.  The maximum penalty for assault with intent to commit a sexual offence is 15 years' imprisonment.

11This is a serious example of the offence of assault with intent to commit a sexual offence:

·It was opportunistic and brazen;

·Your conduct in the lead up to the assault was persistent.  You continually followed the victim, even after she had asked you to leave her alone and physically distanced herself;

·The victim was alone and vulnerable.  It was the early hours of the morning and the railway station was deserted;

·The attack occurred in a public place and the victim was a stranger to you;

·The assault on the victim when she was thrown to the ground was forceful;

·The sexual offence you were intending to commit was penile-vaginal rape which is a very serious offence.

12I am however mindful that you were acquitted of the more serious offence of attempted rape, and you are not to be sentenced for that.  I accept that your offending was not pre-meditated.

13There is no victim impact statement, but the victim gave evidence of how she felt at the time.  She thought she was going to die, you were too strong, and she was praying for the police to come.  The offending would have been frightening and terrifying for her.

14I turn now to your personal circumstances.

15You were born in Papua New Guinea and are from a village in the Highlands.  Your parents are well educated and have strong traditional cultural values and beliefs.  Your parents separated and your father remarried in 2010.  He remains in Papua New Guinea together with a large number of your extended family.

16You finished your secondary schooling at Papua New Guinea National High School in Port Moresby and completed Year 12 around 2004.  You then went to work in the mining and oil industry, and received some training through an Australian Company, Oil Search.  From 2006-2008 you worked for Chevron Texaco.  You worked consistently whilst in Papua New Guinea, other than when you were obligated to return home because of family or clan issues.

17There were two main issues involving your family or clan that arose.  In 2007 your sister died of an overdose, and there was pressure on you to engage in a revenge killing, as it was understood she had killed herself because she was subjected to domestic violence.  You did not do it but the pressure remains.  Secondly, there have been multiple conflicts and violent disputes between your extended family and rival clans relating to land and business, and the disputes are ongoing.

18You had one significant relationship in Papua New Guinea which commenced in 2009 and ended in 2014.  You have two children in Papua New Guinea, aged 10 and 8, which apparently your sister here does not know about.  You told Ms Ferrari you provide their mother with financial support, and you may well have done, but I doubt you are able to do that now.

19Your sister immigrated to Australia in 2003.  She is a single mother and plays a matriarchal role in the family, and encouraged you to come to Australia in 2016.  Your sister told Ms Ferrari that she had concerns regarding your mental health and ability to cope in Papua New Guinea.

20You arrived in Australia on 10 March 2016 on a three-month visitor visa.  Upon arrival you lived with your sister and helped with her children.  Your mother, sister, younger brother and cousins live in Australia.  You did some causal work as a painter.  You then moved to Western Australia for one or two months hoping to work in mining, and worked as a casual fruit picker whilst you were over there.  You could not find work in mining so returned to Melbourne in late 2016, and worked with your brother in a business that cleans up after flood damage.

21Your visitor visa expired on 10 June 2016, and you applied for a permanent protection visa on the basis that you had a well-founded fear of persecution if you were returned to Papua New Guinea, namely that you would be pursued and killed by rival clan members if you return.  On 21 April 2017 your application for a protection Visa was rejected.  You were in custody by this stage and did not, or were not able to, exercise your right to appeal within 28 days.

22You told Ms Ferrari that you were generally a social drinker, however as you described to her, it appears you drink more than would ordinarily be understood by the term “social drinker”.  At the time of this offending you had drunk excessively and were intoxicated.

Report of Ms Ferrari

23Ms Ferrari produced a lengthy, dense psychological report.  Your counsel sensibly did not rely on much of it and for good reason.

24Ms Ferrari diagnosed you with PTSD with secondary psychotic features.  The traumatic events leading to the PTSD was your exposure to and experience of varying degrees of violence and trauma as a child, including tribal or clan violence and domestic violence.  She said there may be a differential diagnosis of schizophrenia, but you do not meet the full criteria and a psychiatric assessment would be needed for any further diagnosis.  This much I accept.

25In the report you persist with your version of events.  You told Ms Ferrari that the victim became angry with you and threw a bottle at you.  You told Ms Ferrari that you were merely attempting to calm her down, and when you grabbed her to calm her down the two of you fell down together.  You told Ms Ferrari you cradled the victim’s head as you fell, to prevent her hitting the cement.

26The explanation you gave Ms Ferrari about this offending is essentially the same explanation that was rejected by the jury and is inconsistent with the verdict.  Unhelpfully, Ms Ferrari appears to have accepted your explanation and used it as the factual foundation for much of her report.  As a result, I have considerable difficulty accepting significant parts of her opinion.  In particular, I do not accept her opinion as to the cause of your offending.  I do not accept her opinion as to the relationship between your PTSD and your offending.  I reject her opinion that you have any insight, regret, understanding or remorse.

27As to her assessment regarding your level of risk, I do not accept her opinion.  A key difficultly I have with her risk assessment is that she finds you to be insightful and remorseful about your offending, which you are not.  As your counsel sensibly conceded, the underlying factual foundation of her assessment is problematic.

28Relevantly your counsel relied on a number of positive or pro-social factors that do enhance your prospects of rehabilitation:  you have no prior convictions (noting that you do have two matters pending); you have strong family support; you are well educated and have good work prospects; and you have a very strong work ethic and history, including working during your time in Australia.  You have also indicated an eagerness to engage in psychological treatment if it is available.  I accept these factors weigh very much in your favour.

29However given you persist with your version of events, I do find your prospects of rehabilitation to be somewhat guarded.  Specific deterrence is a relevant consideration in your case, as is protection of the community.  All people, including women, have a right to go about their lawful business in public spaces without being at risk of violence and sexual assault.

30It is accepted you will certainly be deported at the end of your time in prison.  This is not a situation where you had secured a visa enabling you to reside in Australia, and now face the real prospect of losing that right.  However in my view the knowledge that you will be deported is a relevant factor in mitigation in the following ways: first and most importantly, it increases the hardship of your time in custody.  Your time in gaol will be spent knowing you will be deported at the end of your gaol term, in circumstances where you have a real fear of returning to Papua New Guinea.  Whilst you know you will be deported, you have the uncertainty of not knowing at what point after the expiration of your non-parole period this will occur. You told Ms Ferrari, and I accept, that you feel returning to Papua New Guinea would be like “suicide” and you believe you will be killed when you return.

31Secondly, it may also be said you have lost or greatly diminished your prospects of ever settling in Australia, in circumstances where your sister, mother, younger brother and cousins live here.  I consider this is mitigating to some extent, in circumstances where you both fear return and where significant members of your family live in Australia.

32This is your first time in custody.  You have been on remand now for over two years, which is a very lengthy time for any person to spend on remand.  It is widely accepted that time spent in custody is generally more difficult as a remand prisoner than as a sentenced prisoner.

33Further, in May 2017 you were attacked and stabbed around five times with a screwdriver by another prisoner.  You were initially treated at hospital and then spent two or three weeks in the prison medical centre.  You were moved to a different prison and have remained in protective custody since, meaning you have been in protection for almost two years.  You have also been prescribed medication to treat the depression and anxiety you have suffered since the attack.  I accept that being stabbed and placed in protection has made your time in custody more difficult and I take this into account when sentencing you.

34I accept that Verdins limbs five and six are applicable in your case.  Given you suffer PTSD with secondary psychotic features, a sentence of imprisonment will weigh more heavily on you than it would on a prisoner of normal mental health.  Indeed, it has already done so.  You have suffered some positive psychotic symptoms in custody including persecutory delusions, paranoia, guardedness, mistrust and suspicion.  Further, your PTSD and positive psychotic symptoms have worsened in custody as a result of being attacked.  This has made your time in custody more difficult for you, as you continue to experience significant fear, hyper vigilance and feel constantly at risk.  I must give weight to both limbs five and six of Verdins and I take these factors into account when sentencing you.

35General deterrence, denunciation and just punishment are significant sentencing considerations.  The message must be continually be sent that sexual offending against vulnerable victims, frequently women, will be met with stern punishment.  The victim was a stranger to you, and lawfully going about her business in a public place.  She had a right to be left alone and to feel safe.

36I was referred by the prosecution to some sentences of this court, and have read those.  Ultimately of course every case turns on its own unique facts.

37Your counsel submitted that there should be significant concurrency between the two offences, having regard to the nature of the offending, and I accept that submission.  Both offences occurred as part of one episode involving a single victim, and substantial or total concurrency is warranted in the circumstances.

38Mr Wai, would you stand up please.

39In all the circumstances, the sentence of the court is as follows:

40On Charge 1, you are convicted and sentenced to four months' imprisonment.

41On Charge 3, you are convicted and sentenced to five years' imprisonment.

42I direct that the sentences are to be served wholly concurrently.  This makes a total effective sentence of five years' imprisonment and I fix a non-parole period of three years' imprisonment. 

43I direct, Mr Wai, that you have already served 746 days by way of pre-sentence detention, and I reckon that period as time already served under this sentence.

44Thank you.  Mr Wai can be removed, thank you.

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