Director of Public Prosecutions v Waromi

[2016] VCC 1103

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00513

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETRUS WAROMI

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 August 2016
CASE MAY BE CITED AS:	DPP v Waromi
MEDIUM NEUTRAL CITATION:	[2016] VCC 1103

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough
For the Accused	Ms B. Franjic

Pages 1 - 12

 

 

HER HONOUR:

1Petrus Waromi, you have pleaded guilty to one charge of rape.  The maximum penalty for that offence is 25 years' imprisonment. 

2The prosecutor made application for the taking of a forensic sample from you.  The making of that order was consented to.

3The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances are as follows.  The complainant knew you as a result of attending the same church.  You had been a mentor to your son.  She did not know you very well personally.  On
30 May 2015, the complainant was at home.  Her son, who was about 16, was there with his friend.  At about 9 pm the complainant went to bed.  At about 9.30 pm she asked the children to turn down the television, and the complainant was asleep by about 10 pm.

4At about 12.40 am on 31 May 2015 the complainant was woken up by the sound of footsteps in the house.  You had come in through the back door.  The complainant heard a lighter being struck and then saw her bedroom door open.  You said to the complainant that you needed help and that you were in trouble.  She told you to get out so she could get dressed.  She said she would come outside and talk to you.  The complainant got dressed and met you in the kitchen.  You said you had drunk too much and could not go home to "Ricky's house", because you were afraid to wake him up because you would get into trouble.  Ricky was a minister at your church.  You smelled of alcohol.

5The complainant closed the back door and returned to her room with you following.  She told you that you could "crash" on the floor, or that you could lie on the other side of the bed, but either way she had to go to sleep.  The complainant thought she could trust you.  The complainant got into bed.  The light was off and the complainant heard you getting undressed and taking your pants off.  You climbed over the complainant to the other side of the bed and were lying on the outside of the sheets.  Soon afterwards you rolled over and put your arm over the complainant, and you were under the sheets.  She told you to stay on your side.  She said she would stay on her side and she needed to go to sleep.  The complainant moved further away from you.

6The complainant asked you what you had done and you said that you "had been a naughty boy and been drinking, and could not go home because you would get into trouble".  You continued to talk and the complainant told you to be quiet because she needed to sleep.

7You then put your right arm over the complainant's arm and then your right hand under her singlet and grabbed her right breast.  She grabbed your hand and said "No".  You did it again, and again she said "No".  After a further 30 seconds the same thing happened again and the complainant pushed your hand away and said "No, you know I have a partner".  You chuckled and said "You know what I want, I want this", and the complainant told you "No, stop".   You then put your hand down the complainant's pants and put your fingers into her vagina.  She could feel two fingers inside for about 30 seconds.  She told you to stop, and after about 30 seconds you did stop. 

8You then pulled down the complainant's pants.  Again she asked you to stop.  You replied "I know what I want".  The complainant tried to stop you from taking off her pants but could not do so.  You pulled her legs apart.  You put your mouth on the complainant's vagina and put your tongue into her vagina.  The complainant kept saying "Stop".  Your tongue was there for about two minutes. 

9The complainant gave a sigh and pretended to enjoy what was happening.  She knocked on the wall, hoping to wake her son, who was in the next room.  When you did this, you told her to be quiet as you did not want her sons to know about this.  You said "This needs to be our secret".

10You then got on your knees and pushed the complainant's pants further towards her ankles and pushed her legs apart.  She again said "Stop".  You said "I know you have had a hard life, I just want to show you love".  You then put your penis in her vagina and had sex with her for a minute or two.  You engaged in other sexual activities whilst the complainant again said "Stop".  You then grabbed both her arms and held her wrists down on the bed above her head and continued to have sex with her while she continued to say "Stop". 

11You then changed position by turning the complainant on her side.  You put your penis back into her vagina and continued to have sex with her.  After a while you stopped and got out of bed and put your clothes on.  You said you were going to have a cold drink.  The complainant said "Okay".  You left the room and she said up and cried.

12You left the house.  The complainant looked in the back yard, then returned to the house and locked the back door and had a shower.  The complainant did not contact police as she did not want to go through it all again, as she had previously been a victim of rape.  She did not want police worrying her children.

13The complainant did tell the minister at the church of what had happened.  The minister spoke with you soon after.  He spoke with you again the next day and you volunteered to go to the police station.  You and the minister went to the police station on 10 June 2016.  You were interviewed by police with the assistance of an interpreter.  During the interview you made significant admissions about your actions.  You said you had been drinking and were not thinking well what you were doing. 

14The complainant has provided a Victim Impact Statement, which was tendered as Exhibit B.  With great fortitude the complainant read her Victim Impact Statement in court.  She described the consequences to her of this incident.  She described various problems, including trouble sleeping and feelings of lack of safety in her own home.  She says that this has impacted on everything on a constant basis.  The complainant also talks about what makes her feel scared in her own house and various reminders of what happened.  She speaks of the impact that this incident has had in her relationship with her current partner.  The complainant also describes having to cut back on her volunteer work because of difficulties coping.  She describes her fear at one stage that she was pregnant, although those fears fortunately turn out to not be borne out. 

15The complainant also describes the impact on her in terms of her interactions with her community.  She says there are a number of people that both you and she were friends with, and that this incident and the consequences have impacted on those friendships.  The complainant described the negative impact on her in terms of her feeling that she had lost trust in people, particularly males.  The complainant describes her distress at the idea that she will have to leave where she was living because there are too many reminders.

16In court, after reading her Victim Impact Statement, the complainant said she had been diagnosed as suffering from post-traumatic stress disorder as a result of this incident, and that she is receiving counselling.  It is to be hoped that with counselling and time the complainant will be able to recover from this incident, although I am sure that she will never be able to forget it. 

17In sentencing you I have taken into account your personal circumstances.  You are now 26 years old.  You were brought up in West Papua.  There have been very significant difficulties for you and your family because of your father's role as leader of the opposition in West Papua.  Your father has been imprisoned for a number of terms of imprisonment, and as I understand it, is either currently in prison or shortly about to be imprisoned again. 

18Your family was subject to intimidation and violence.  Despite that, you completed Year 12 at school.  A particularly violent episode occurred involving violence towards your sister.  After that both you and your sister came to Australia in 2008.  In 2009, you were granted a permanent protection visa.  You were living in Perth, Western Australia until mid-2014.  Initially in Perth you did very well.  That is evidenced by the contents of a citation for an award you received from the college you were attending which was tendered as Exhibit 1. 

19You formed a relationship with a woman, which ended in about 2012.  By that time you were abusing alcohol and also having mental health difficulties.   You worked in odd-jobs but were also involved in offending, which I will come back to.  You were admitted to hospital as an involuntary patient, and also received involuntary treatment in Western Australia. 

20Prior to leaving Western Australia you were receiving monthly depot injections of antipsychotic medication.  That conclusion is supported by the contents of Exhibit 2, which is a copy of a community treatment order which was to end on 30 March 2014.  I have not been provided with any other documentary material as to your mental health conditions and treatment for those conditions in Western Australia or Victoria.

21Evidence was given on your behalf by Ms Louise Bryne of the West Papua office.  Ms Byrne has expertise in relation to the political situation in West Papua, and her family assisted in bringing you and your sister to Australia.  Through her brother and others, she has been aware of your situation in Western Australia.  She has been assisting you since you came to Victoria in mid-2014.  She has assisted you in obtaining treatment from the mental health authorities in Victoria.  Your counsel says that you stopped contact with them and had ceased medication by the end of April 2015.  Ms Bryne observed deterioration in your appearance was aware of your alcohol problems.  She said that around the time of this offending you would come every Monday to her office, but you were "a little bit indifferent" and "dismissive". 

22Dr Lester Walton has provided a psychiatric report dated 27 July 2016, which was tendered as Exhibit 4.  In providing his opinion, Dr Walton says that you give a convincing history of clinically significant mood swings.  He believes you are mistaken when you label yourself as suffering from bipolar disorder. 
Dr Walton considers that a diagnosis of schizophrenia would not satisfactorily account for your mood disturbance.  Dr Walton believes the correct diagnosis is that of a psycho-affective disorder.  He says "This is not simply a combination of bipolar disorder and schizophrenia, but is considered to be a distinct entity with a rather better prognosis than schizophrenia.  These diagnostic niceties do not have a great deal of forensic relevance, as all of the three conditions may manifest as acute psychotic reactions".

23Dr Walton says that you remain of normal intelligence with no significant cognitive deficits.  Dr Walton is of the view that you suffer from mental illness.  He says that you are inclined to classify your belief at the time that the victim was interested in you sexually as a delusion, although that is not a proposition that Dr Walton can clearly assert himself.   In the context of discussing the possibility of a formal impairment defence, Dr Walton says "It is highly likely that his mental state would have deteriorated in the absence of necessary treatment and his capacity to consistently exercise proper social judgment may well have been compromised, especially in a parallel state of alcohol-induced intoxication". 

24Dr Walton says that you have been re-established on effective antipsychotic medication, and are currently quite well.  He says you will require antipsychotic medication for the rest of your life.  Dr Walton refers to your turning yourself into the police as a demonstration of genuine remorse.  He says this also points to you "Retaining the capacity to distinguish right from wrong at the time of the offending".  Dr Walton says that incarceration will be more onerous for you because of your major psychotic illness.  He says this is not the ideal situation for ongoing treatment and rehabilitation of a person suffering from a serious mental illness.  Dr Walton is of the opinion that the prospect of deportation will weigh heavily on you and elevate the risk of further psychotic breakdown.

25You have admitted a prior criminal record.  That criminal record involves limited offending related to alcohol abuse and driving.  Of more particular concern is an appearance in April 2013 in the Perth Magistrates' Court on offences involving violence and threats to injure.  You received a 12-month intensive supervision order.  Your counsel advises that the victim in those matters was your former partner.

26Your counsel in plea submissions conceded that there were certain aggravating features of this offending.  She also submitted that your offending was opportunistic, and that there was an absence of certain aggravating features. 

27Your counsel submitted that I should conclude that your state of mind fell short of actual awareness of lack of consent.  On the basis of the factual matters set out and accepted in the Summary of Prosecution Opening, what you told the police in the record of interview, and what you told Dr Walton, I am satisfied beyond reasonable doubt that you were aware that the complainant was not, or might not, be consenting at the time of each act of penetration involved in this charge.

28Your counsel in sentencing submissions addressed a number of matters which she submitted I should take into account in mitigation of sentence.  These included your voluntarily handing yourself into the police, your admissions, your remorse, and your plea of guilty.  Your counsel submitted that your plea of guilty had a utilitarian value and was a demonstration of your remorse.  Your counsel said that there was a contested committal but the complainant had not been called.  Your counsel submitted that all six Verdins principles should apply in sentencing you.  She also submitted that your prospects of deportation should be taken into account, as well as your good prospects of rehabilitation. 

29Petrus Waromi, rape is a very serious offence.  The maximum penalty of 25 years indicates the seriousness with which Parliament on behalf of the community takes this offence.  Rape involves the violation of another's person without their consent.  There are a number of aggravating features involved in your offending.  The offending covered in this one rolled-up count covers four acts of penetration of three different types.  There was additional unwanted sexual activity.  You did not use a condom, exposing the complainant to fear of disease and pregnancy. 

30This incident occurred in the complainant's home, where she should have been able to be safe.  She was kind enough to allow you to stay because you asked for her help.  You took advantage of her kindness and trust.  Your actions constituted a gross breach of her trust.  You knew her child and his friend were in the house, in that you knew she had children.  When the complainant tried to alert her son, you told her not to.  The offending went for a period of time but not over a prolonged period.  You ignored the complainant's protests and attempted to justify yourself.  There is no indication that you went into the house with any intention to do what you did, but you were there because you were drunk.  As soon as you felt sexual urges, you should have removed yourself from the situation, you did not do so. 

31As described by the complainant, the effect on her has been profound.  As I have said, it is to be hoped with time and counselling that she will, at least to a degree, be able to recover from this.

32This type of offending not only causes harm to the immediate victim and her family, it also causes harm to the community.  When other people hear about this type of offending it means they fear themselves that people who come into their house might abuse their trust.  This undermines the community's confidence in each other. 

33The objective gravity of your offending is in the mid-range.

34There are a number of matters which operate in mitigation of sentence.  It is very significant that you handed yourself in to the police.  This demonstrates genuine remorse and contrition.  Your plea of guilty has utilitarian benefit despite the contested committal.  Your plea of guilty is a further indication of your remorse.  You have expressed remorse to Dr Walton and to Ms Bryne.

35You are a relatively young man who has had significant difficulties in your life.  I consider that you have good prospects of rehabilitation.  It is important that you continue to receive treatment.  It is also very important that you receive treatment and counselling to do with alcohol abuse issues.  I say that particularly because of the role alcohol played in this offending and in your previous offending. 

36Consideration of the application of Verdins principles is clearly required when considering the weight to be given to matters such as general deterrence and specific deterrence.  I accept Dr Walton's diagnosis that you have a significant mental health illness.  I note Dr Walton's opinion that your judgment would have been affected at the time of this offending.  Dr Walton provides no basis for that conclusion. 

37I am not satisfied to any level that your mental illness impacted on your judgment at the time of this offending so as to lead to the application of the first four Verdins principles.   There is nothing in your behaviour as described in the prosecution opening to indicate psychotic, delusional, or hallucinatory thinking.  Your behaviour is consistent with you being under the influence of alcohol.  What you said was rational in respect of wanting a place to stay, and your reasons for that.  What you said in self-justification made a type of sense, particularly in light of your levels of intoxication.  There is nothing that you said to suggest that you were suffering from any form of psychosis.  You may have been labouring under some self-delusion that the complainant was interested in you, but that type of delusional thinking is not due to a psychotic episode.  There is nothing to suggest in the types of psychosis and delusions that you have been described as suffering which would indicate delusions of that type.

38As a result of that conclusion, general deterrence and specific deterrence are not to be moderated in application of Verdins principles.  You have good prospects of rehabilitation, but I consider that specific deterrence must be given some weight because of this offending, and because of your prior offending involving violence against a female. 

39General deterrence must of course be given significant weight in a sentence for rape of this kind.  Others must understand that if they engage in this type of behaviour there will be severe penalties that follow.

40I do accept that your mental health issues lead to the application of the fifth and sixth Verdins principles in mitigation of sentence.  Imprisonment will be more difficult for you, and is likely to make your condition worse, particularly because of the prospect of deportation.  The prospect of deportation will make imprisonment more onerous for you and is likely to have negative psychiatric implications.  That is particularly so in the light of the very difficult circumstances for your family in West Papua and the prospect that intimidation and violence could resume against you if you return to West Papua. 

41A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence.  I have taken the matters in mitigation into account in setting a shorter non-parole period than I otherwise would have.

42Could you please stand up, Mr Waromi?

43Petrus Waromi, on Charge 1 of rape you are convicted and sentenced to a term of imprisonment of three years and six months.  I fix two years as the period you are required to serve before being eligible for release on parole.

44But for your plea of guilty I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years and six months. 

45I declare that you have served 363 days of this sentence by way of presentence detention. 

46I make the order for the taking of a forensic sample from you.  I make that order because of the seriousness of the circumstances of the offending and that the order is by consent. 

47Thank you, could you please sit down, Mr Waromi?  Mr Goodenough, something I have left out?

48MR GOODENOUGH:  Just the order, the s.464ZF order, Your Honour.

49HER HONOUR:  I have done one of those, I think we have spat it out of the computer.

50MR GOODENOUGH:  Your Honour is ahead of us.  Thank you.

51HER HONOUR:  And that has been fine, I think.  Otherwise in that, you cannot see anything technically wrong, Ms Franjic?  Anything that leaps to your eye as being something that I have technically left or out ‑ ‑ ‑

52MS FRANJIC:  Maybe technically, I think Your Honour is required to warn my client in relation to the s.464ZF, yes.

53HER HONOUR:  I am, too.  Thank you very much, I had written that down, I said "explain", but I should have done that.  Mr Waromi, could you stand up again, please?  Authorities will come to the prison to take a sample of saliva from your mouth for the purposes of keeping a DNA record.  I am sure you will cooperate with them, but I need to tell you that if you do not cooperate, they are entitled to use reasonable force and to take a blood sample from you.  All right, thank you Ms Franjic for that.  Otherwise than that, everything covered?  Thank you very much, Mr Waromi can be taken down now.  Thank you, Madam Interpreter. 

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