Director of Public Prosecutions v Wardak

[2017] VCC 1459

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00461

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUQIM WARDAK

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 20 June 2017; 2 October 2017
DATE OF SENTENCE:	11 October 2017
CASE MAY BE CITED AS:	DPP v Wardak
MEDIUM NEUTRAL CITATION:	[2017] VCC 1459

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Rape – Attempted rape – Threat to kill – Offending pre-meditated – Armed with scissors – Relevant criminal record – History drug abuse – History of  elevated libido exacerbated by drug use – Difficulties in regulating emotions particularly anger – History depression and anxiety

Legislation Cited:     Sex Offender Registration Act 2004

Sentence:Convicted and sentenced to Total Effective Sentence of 9 years’ imprisonment with a non-parole period of 6 years and 6 months’ imprisonment – Serious sexual offender declaration after the sentence imposed on Charge 2 - Pre-sentence detention 215 days – Ancillary Disposal Order – Sex Offender Registration – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Solicitor for Public Prosecutions
For the Accused	Mr J. Desmond	Giorgianni and Liang Lawyers

HER HONOUR:

1Muqim Wardak, you have pleaded guilty to one charge of rape, one charge of attempted rape and one charge of threat to kill.

2The maximum penalties for these offences are as follows:

(a) Rape:  25 years' imprisonment.

(b) Attempted Rape:  20 years' imprisonment

(c) Threat to kill:  10 years' imprisonment.

3The maximum penalties reflect the seriousness with which Parliament regards these offences.

4You and the complainant were not known to each other.

5The complainant was 28 years of age at the time that you offended against her.  She was a stranger to you.  She was a tertiary student, who worked casually as a masseuse and offered sexual services.  She advertised her services on a website.

6At the time of the offending, you were 30 years of age, and were living in shared accommodation at a house in Preston, a short distance from the crime scene.  You were single and unemployed.

7On Tuesday 26 January 2016, the complainant was contacted by you via mobile phone.  You text messaged the complainant, asking her how much her outcall service was.  She replied that it would cost $300, plus $20 for a taxi.  The complainant offered to come for two hours instead and said that she would charge you $520 including the taxi fare.  You agreed to this, knowing very well that you had no money to pay her.

8The complainant text messaged you, asking for your address.  You replied,
"11 Edith Street, Preston"; this was not your home address, but a vacant property.

9The complainant caught an Uber to this address, arriving at about 2.00 am.  She text messaged you, telling you that she was out the front of the address.  You told her to wait and you would come and get her.  You walked from the house and met the complainant, then walked her to the rear of the house.

10You opened a door to an external room at the back of the premises, and said to the complainant, "We do it in here because inside, people are sleeping".  The complainant gave you a packet of cigarettes she purchased for you, and asked you for payment prior to services.  I understand that you had no money to pay.

11You stood outside the room and smoked a cigarette.  The complainant went into the room.  The complainant turned her mobile phone light on and then attempted to turn the interior light on, but the light in the room did not work.  You came into the room and the complainant asked you why the light did not work.  You pushed the complainant into the room with both hands, and said to her, “Listen, you need to do everything I say now or I will kill you”.  This gives rise to Charge 1, make threat to kill.

12The complainant felt something sticking into her stomach and looked down.  She saw that you were holding a pair of scissors to her stomach.  With the scissor blade against her stomach, you told the complainant to take off her jacket.

13The complainant took off her jacket, and you began touching the complainant over her clothing.  You rubbed the complainant's breasts and vagina; as you did this, you held the scissors against the complainant.

14You then grabbed the complainant's phone out of her hand.  The complainant tried to get it back, however, you told her not to touch it.  As the complainant reached for her phone, you pushed her hand away to prevent her from obtaining it.

15You then pulled your pants down and pushed the complainant’s head down towards your groin, and told the complainant to suck your penis.

16The complainant asked, “If I suck it for you, will you give my phone back, and will you let me get home safely?”.  You did not answer.   The complainant performed fellatio on you, as she was in fear.  This conduct gives rise to Charge 2, the charge of rape.

17As the complainant performed fellatio on you, she reached for her bag.  As she did this, you smacked her in the face four or five times, and said to her,
"You're starting to get me angry now.  I want to hurt you now".

18The complainant attempted to fight back, and pushed you away from her.  As she did this, she was screaming for help.  You covered her mouth.  The complainant managed to yell, “I can't breathe”, and you took your hand away.

19You pushed the complainant to the ground onto her back, where you held the scissors against the complainant, and pulled her shorts and underwear off.  You tried to open the complainant’s legs, however, she fought back.  As you did this, the complainant grabbed the blade of the scissors, and continued to push you away.  You and the complainant continued to struggle over the scissors and they broke, causing the complainant to let go.

20The complainant managed to break free, and she grabbed her bag and ran towards the door.  You chased her, grabbing her from behind, and pulled her back into the room.  You held the complainant around the neck in a choke hold and said, “I'm going to kill you”.  You continued to choke the complainant, to the point where she could not breathe.

21You let the complainant go, and pushed her to the ground so she was lying on her back.  You lay on top of the complainant and removed your pants.  The complainant could see that you had an erection.  You then attempted to insert your penis into the complainant's vagina.  You came within about
1 centimetre of doing this, but the complainant managed to push you off her.  This conduct gives rise to Charge 3, attempted rape.

22She grabbed her bag, ran out the door, and onto the street.  She was naked from the waist down.  The complainant managed to hail a taxi and was driven to the Brunswick Police Station.

23On 26 January 2016, police attended at 11 Edith Street, Preston with a search warrant.  When they arrived at the crime scene, they observed the premises were vacant. Subsequent enquires were made, and it was established that the property had been vacant for some time.

24On 13 February 2016, you were arrested at your home.  You made a no comment record of interview, and refused to provide your DNA; these actions on your part were your rights at the time, and you are not to be punished for exercising them.  However, your approach at that stage did not manifest much in the way of remorse.  Police subsequently obtained a court order under the Crimes Act, and a buccal swab was obtained from you.

25The complainant’s shorts, her G-string, and the handle of the scissors were tested for DNA, and your DNA was found on each of these items.

26Mr Wardak, your offending is most serious, and warrants a punishment which is just in all of the circumstances.  Your conduct must be strongly denounced.  Your offending was premeditated; it involved you arming yourself with a pair of scissors, and luring the victim to the back of an empty house, where she was unable to call out to anyone for help. You acknowledged to Mr Cummins, psychologist, that you made a plan to have sex with a woman, in circumstances where you did not have the money to pay for her for sexual services.  Over and above the acts which give rise to the rape and attempted rape, there were other aspects of your offending which are most concerning.  Your threat to kill was made very real by your use of the pair of scissors, which you produced at an early stage, and held against the complainant.  You deprived the victim of her phone, and when she tried to seek some assurance of her safety, you failed to answer her.  When she tried to reach for her bag at one stage, you smacked her to the face several times, telling her that you now wanted to hurt her.  When she tried to escape, after you had raped her, you went after her, dragging her back into the room, and put her in a choke hold, to the point where she could not breathe.  The complainant bravely fought you off, then had to suffer the indignity of travelling in a taxi to the police station, whilst half naked.  I must say, that I find your conduct most disturbing and chilling.  There is nothing which would reduce your moral culpability, which I find is very high.

27There is no victim impact statement, but I have no doubt that the victim was terrified by what you did and said to her.  Let me make it very clear, that the fact that the complainant was prepared to offer sexual services for payment to you on this occasion, has little relevance to my sentencing task.  Rape is not so much about having sex with another person, it is a crime of violence; about exercising power over another, and this is precisely what you did to the victim.

28I take into account your criminal history, which is not an overly lengthy one, but has some matters of relevance.  Mostly, it comprises of driving offences, however, in October 2009, you were dealt with at the Dandenong Magistrates' Court for, amongst other charges, two charges of recklessly causing injury, three charges of unlawful assault, and one charge of  assault police.  You received the benefit of a 12 month community based order, with conditions for drug and psychological treatment, as well as programs aimed at reducing re-offending.

29In May 2013, you were convicted and fined for contravening a family violence order.

30Although not part of your criminal history, I also note that you have subsequent matters, although these were committed before the matters for which I now sentence you.

31Your offending for which I now sentence you, is far more serious in nature than anything you have done before.  In this regard, I note that this is your first episode of sexual offending.

32I understand that at the time that you committed the offences for which I now sentence you, you were in an agitated state, whilst coming off amphetamine.  Mr Cummins, psychologist, interviewed you on 25 May 2017.  In his report, dated 6 June 2017, you told Mr Cummins that you had smoked a good deal of cannabis the day before the offending, and that whilst coming off the methamphetamine, you felt sexually aroused, agitated and aggressive.  You told him that you did not know why you committed these offences, that sometimes you have random anti-social thoughts.  You said that you did not know if it was the effects of the ice or whether there was something else
"Going on with (you)."

33Mr Cummins expressed the opinion that your ability to express victim empathy was very limited, as was your level of insight in respect of your offending behaviour, including your motivation for it.

34On assessment of you, using the Static-99R tool, Mr Cummins assessed you as being in the moderate to high risk category for re-offending. He also conducted an assessment, using the RSVP tool, and found that there was no chronicity to your sexual offending.

35He did not assess you as having a psychopathic personality disorder, but that, by your own admission, you have a significant anger management problem, which you acknowledged, pre-dated any issues with substance abuse.  
Mr Cummins went on to say that he assessed you as being at moderate to high risk of sexual re-offending, although he accepted that this might reduce, if you actively and beneficially took part in offence specific treatment.

36He said that in his opinion, you were, "Likely to harbour a sense of sexual entitlement in relation to women and.... (your) offending was reflective of sexual frustration, anger, and general frustration concerning (your) life circumstances."  He concluded that you, "most probably" have a personality disorder, with elements of an Antisocial Personality Disorder, a Borderline Personality Disorder, and a Narcissistic Personality Disorder."  He was of the view that you needed significant assistance to develop more comprehensive insight into your offending, and to develop victim empathy.  He said that you displayed some remorse for your offending, but that you were unable to display comprehensive remorse; that it was probable that you have unresolved attachment issues, but had very little insight into these.  He expressed the view that your long-term prospects of rehabilitation were "significantly guarded".  Of course, this assessment is a matter for me, not for Mr Cummins, but, in all of the relevant circumstances, I make the same finding.

37In order to further assist me, I arranged for a Forensicare psychiatric report to be prepared.  Dr Maria Triglia, psychiatrist, prepared that report which is dated 1 September 2017, and the report is based on two interviews with you in August this year, as well as her perusal of relevant materials, with which she was provided, including Mr Cummins’ report.

38Dr Triglia diagnosed you as having cannabis and methylamphetamine use disorders, both of which were in remission, due to your incarceration.  She said that you have a history of depression and anxiety, although it was difficult to determine as to whether these were conditions which were independent of your substance abuse issues.  She said that you had no present mood problems, although you described anxiety symptoms.

39She said that it was possible that you have an enduring psychotic illness which is now becoming apparent, referring to symptoms of persecutory delusions, which you seemed to hold on the second occasion that she interviewed you.

40Dr Triglia went on to say that you have longstanding difficulties in regulating emotions, especially anger, which likely indicates significant personality dysfunction, although a specific personality disorder could not be diagnosed, without additional information in respect of your development in the context of chronic substance abuse.  She said that it was not possible to clearly determine the effect of substance abuse to your anger, although she said, "There is likely to be some contribution through actions on mood, arousal, and judgement."

41Dr Triglia also noted that you said that you have had an elevated libido for your entire life, with "a very significant exacerbation" of your arousal when using methamphetamine.

42She said that you now acknowledged the inappropriateness of your actions, their impact on the victim, and the need to address the factors which led to your offending.  Although she said that assessment of risk was not her province, she broadly agreed with Mr Cummins’ comments about risk, and that addressing specific risk factors would mean addressing your mental state, libido, substance use, and regulation of emotion.  She recommended that you see a psychiatrist, and trial the use of antipsychotic medication.  Dr Triglia has put measures in place for this to happen.  She also recommended that you be assessed for medication to manage your libido, and that you undergo relapse prevention counselling, in respect of your substance abuse, as well as a sex offender and anger management program.  In her view, resumption of substance abuse would place you at significantly increased risk of re-offending.

43While Dr Triglia said that there was the potential of exacerbating your vulnerability to psychosis whilst in gaol, she said that it was not clear as to whether you actually had a mental illness at this stage, therefore, the issue of the impact of incarceration upon your mental health, was not clear at this stage.

44Mr Desmond, who appeared on your behalf, submitted that on the basis of
Mr Cummins’ opinion, that you probably suffer from a personality disorder, and also, he referred to recurrent depression that Mr Cummins talked about.  He said that therefore, time in gaol would be harder for you than for someone without these conditions.  He said that I would be in error if I did not make such an allowance, although he also said that he was unable to say whether time in gaol would be harder for you or not, because of the purported impairment or impairments of mental function.

45In circumstances where Dr Triglia is of the view that it is not clear that you are suffering from any mental illness, and it is not clear to me, that even if you are, the effects of this are and will make time in custody harsher for you, I am not satisfied on the balance of probabilities that you are suffering from an impairment of mental function, which has and will make time in gaol harder for you, than for other prisoners who are not in your position.

46However, I take into account the reports of each of the experts in a general way, and I note that you have had some difficulties whilst being in gaol, which are noted in Dr Triglia’s report.  In particular, each of these reports have been most helpful in helping me to determine your prospects of rehabilitation, and the weight that I need to give to some other relevant sentencing factors.

47I take into account your pleas of guilty, and the stage at which these were entered, which was at a rather early stage. In the circumstances, I allow for a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses, especially the victim, the time and trauma of giving evidence, and you have saved the community the time and expense of contested proceedings.

48You have expressed remorse to Mr Cummins and Dr Triglia, albeit that
Mr Cummins was not convinced as to your comprehensive contrition at the stage that he interviewed you.  You also expressed remorse to the Court through your counsel, as well as a willingness to undertake any programs or treatment available to address your offending.  I must consider such expressions of remorse in the context of offending, which you had planned, as opposed to a spur of the moment decision which you came to regret.  I accept that you have some remorse for your actions and a level of insight; however, each of these aspects are works in progress, and you have a good way to go.  However, I also take into account your preparedness to undergo any programs which would assist in your rehabilitation, which is a credit to you.

49I take into account your background, the salient aspects of which were detailed by Mr Desmond.  You were born in Afghanistan in 1986 and moved to Australia with your family, when you were five years old.

50You were educated to Year 10 at Preston TAFE, having attended four different high schools over the years.

51You abused alcohol in your late teens and lived with your family in Epping until you were 23 years old.  You have previously had issues with depression, and have been prescribed anti-depressants in the past.  I was told that in 2009 or 2011, you were referred to a psychiatrist, who you saw for about six months, but no diagnosis was given.

52When you were 19, you became addicted to cannabis, then you commenced using ice, with both of these substances having been consumed by you some time prior to the offending.

53You have never undergone a drug detoxification program, even though you have had the chance to deal with your drug issues, by virtue of a community based order some time ago.

54When you left school, you worked with Optus for three months as a customer service operator, then you worked for a data company for a short time.  You have also done some labouring jobs from time to time, but you have a limited work history.  Unfortunately, your substance issues have made it hard for you to maintain employment.

55You have been in a long-term relationship, and have a six year old child from this relationship.  Your former partner and your child have been visiting you since you have been in prison.  However, you have not told your family about the nature of your offending, as you are embarrassed to do so.  Mr Cummins expressed some concern about this.  On the one hand, you appear to have the support of your family, but this cannot be comprehensive in its nature, if they are unaware of the nature of your offending.

56In all of the relevant circumstances, I place fairly solid weight on specific deterrence and on the protection of the community.  I place strong weight on general deterrence in a bid to deter others from offending in the way that you have.  

57You are to be sentenced as a serious sexual offender in relation to Charge 3.  There is a presumption of cumulation, and a focus on protection of the community because of this, however, it is not submitted by the prosecution that you ought be sentenced disproportionately in order to protect the community from you.  I agree with this submission, and will sentence you in accordance with the principle of totality.  I have factored in that the separate criminal acts that you committed on the occasion in question, are deserving of a measure of cumulation, in any event.

58Mr Desmond submitted that, while you face a significant gaol term, you ought be the beneficiary of a "shorter than usual non-parole period"; that this would be a meaningful demonstration or your reflection of your plea of guilty.  
Mr Livitsanos, on behalf of the Crown, submitted that there was nothing in your case which warranted such an approach.  Your plea of guilty is a matter in mitigation which has been factored in when sentencing you, in the way that I have previously described.  It is one of the factors which impacts on your head sentence and in effect, your non-parole period.

59In the end, I have arrived at a sentence which I believe is appropriate in all of the circumstances.  I see nothing in your case which would justify what might be viewed as a shorter than usual non-parole period.  I have arrived at a non-parole period which is the minimum period which I consider to be appropriate, before you become eligible for parole.

60I am also satisfied beyond reasonable doubt, on the basis of your offending and my concerns about your prospects of rehabilitation, that you pose a risk to the sexual safety of one or more persons in the community, and therefore, I propose to make an order requiring you to be registered as a sex offender under the
Sex Offenders RegistrationAct 2004 (which I might refer to as the Act.)

61Please stand up Mr Wardak.

62You are convicted of each of the offences:

63I make the disposal order sought by the prosecution which is not opposed by you.

64     Pursuant to s.11(3) of the Act, you are to be recorded as a registrable sex offender for 15 years.  You must report your personal details to the
Chief Commissioner of Police annually for a period of 15 years, from the date of your release from custody.  You must first report these details within seven days after your release from custody.  Details in writing of these reporting conditions will be served upon you now by my associate.  I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

65     Mr Desmond, if you would not mind approaching the dock and assisting your client, thank you.

66I now come to the terms of imprisonment, which I impose in this matter.  You are sentenced to the following periods of imprisonment:

67Charge 1:  make threat to kill, three years.

68Charge 2:  rape, seven years and six months, which will be the base sentence.

69Charge 3:  attempted rape, five years and six months.

70You are to be sentenced as a serious sexual offender after the sentence that I have imposed upon Charge 2, which will be entered in the records of the Court.

71I direct that six months from the sentence on Charge 1, and twelve months from the sentence on Charge 3, be served cumulatively with each other, and with the base sentence, producing a total effective sentence of nine years' imprisonment, and I direct that you serve six years and six months before becoming eligible for parole.

72If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 11 years' six months' imprisonment, with a non-parole period of eight years and six months.

73I declare that you have already served 215 days by way of pre-sentence detention.

74Would you take a seat for a moment please, sir.

75HER HONOUR:  Is there anything arising?

76MR LIVITSANOS:  No, Your Honour.

77MR DESMOND:  Yes, nothing, Your Honour.

78HER HONOUR:  Yes, all right.  Thank you, could you please remove
Mr Wardak.

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