Director of Public Prosecutions v Wilson (a pseudonym)

[2022] VCC 745

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN WILSON (a pseudonym)

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2022
DATE OF SENTENCE:	31 May 2022
CASE MAY BE CITED AS:	DPP v Wilson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 745

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Rape (1 charge) – sexual assault (2 charges) – trial – standard sentence – sentence below standard sentence – application of Bugmy

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)

Cases Cited:Brown v The Queen [2019] VSCA 286; Bugmy v The Queen [2013] HCA 27; Cheung v The Queen [2001] HCA 67; DPP v Beck [2021] VSCA 88; DPP v Short [2006] VSCA 120; DPP v Za Lian [2019] VSCA 75; R v Verdins 16 VR 269

Sentence:                  7 years’ imprisonment with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Kounnas (Trial)	Office of Public Prosecutions
Mr S Devlin (Plea)
For the Accused	Mr M Page	Greg Thomas Barrister and Solicitor

HER HONOUR:

1Ryan Wilson,[1] on 24 March 2022 you were found guilty after trial by a jury of one count of rape (Charge 2) and two counts of sexual assault (Charge 1 and Charge 3). The offences were committed on 23 March 2019. The offence of rape has a maximum penalty of 25 years’ imprisonment and (as it was committed after 1 February 2018) is a Standard Sentence Offence pursuant to ss5A and 5B of the Sentencing Act1991 (Vic). The Standard Sentence for this offence is 10 years’ imprisonment. As rape is a category 1 offence under the Sentencing Act 1991 (Vic), I am required to make a custodial order for this offence. The offence of sexual assault has a maximum penalty of 10 years’ imprisonment. If you are sentenced to imprisonment on Charges 1 and 2, you are liable to be sentenced as a serious offender on Charge 3.

[1]        To ensure that there is no possible identification of a victim of sexual offending, these remarks have

been anonymised by the adoption of a pseudonym in place of the name of the offender.

2The circumstances of the offending were set out in the Summary of Prosecution Opening and were the subject of evidence at trial. In sentencing you, I am bound to interpret the facts in a manner consistent with the jury’s verdict.[2]

[2]        Cheung v The Queen [2001] HCA 67.

3As at 23 March 2019, you were 26 years old and working for a security company. You also worked as a volunteer at a hospital, where you met the victim’s older sister, who had two children and had recently separated from her husband. You developed a relationship with her and spent a lot of time together at her home, where you often helped her with her children. However, your relationship was “complicated due to cultural/family backgrounds”.[3]

[3] Summary of Prosecution Opening for Trial [1].

4Prior to coming to Australia on 9 March 2019, the 19-year-old victim was living in the Philippines with her strict family and studying nursing. She had not met you in person but had seen you on Messenger calls with her older sister. She came to Melbourne for 6 months on an extended holiday to stay with her older sister and help with her two children. She met you when you took her sister to the airport to meet her. A few days later, she went with you, her sister and the two children to the city to the Moomba festival but did not speak to you except to respond to your request to go on the roller coaster with your niece.  On 22 March 2019, she saw you mowing the lawns at her sister’s place in the early morning but did not see you again that day. 

5On 23 March 2019, the victim was home alone. Her sister sent her a message from work telling her to travel by public transport to Dandenong so that they could go out for dinner. The victim left the house at around 2:46 pm and messaged her sister that she was on her way. Her sister responded that the victim had left too late and should not bother to go further. The victim returned home on foot but discovered that she was locked out of the house. She was worried about making her sister angry, and messaged her brother in the Philippines as well as her aunt. Then she recalled that she was able to contact you on Facebook and messaged you asking for help to get into the house, and asked you not to tell her sister about her being locked out. You replied that you would be there in 20 minutes and told her to wait behind the house.

6You arrived at the house at around 4 pm and unlocked the back door. As the victim walked past you to enter the house, you slapped her on the bottom with your hand. This conduct is the subject of charge 1, sexual assault.  She walked straight to her bedroom and locked the door.

7You called to her from the loungeroom to come and talk to you about what you were doing. She came out of the bedroom and told you she was cleaning the house. She also told you about her plans to meet her sister but being too late to catch the bus.

8You then touched her on the upper back and asked if she wanted a massage. She turned away and said no. You then picked her up by the shoulders, carried her two to three metres to the lounge room and forced her to the floor, face down. You then sat on her hips, held her arms from behind, and pulled down her pants and underwear. You took off your pants, and, without using a condom, put your erect penis between the cheeks of her bottom, then forced it into her vagina, thrusting in and out three times, while holding her by the wrists. This conduct is the subject of charge 2, rape. On the second thrust, you reached around to undo the victim’s bra, and squeezed her right breast. This is the subject of charge 3, sexual assault. You withdrew your penis after the third thrust and ejaculated on the victim’s back. You then used a black cloth to wipe her back. You told her: “You have our secret, then this is going to be a secret also”.[4] You then went to have a bath.

[4]Transcript of Proceedings, DPP v Wilson (a pseudonym) (County Court, Judge Davis) T43.4- T43.5.

9The victim remained on the floor in shock and when you emerged from the bath room and asked if she wanted to use it, she ran to her room and locked herself in. She sat there crying. At about 4.50 pm when talking to the victim’s sister on the phone, you told her you were in Cranbourne. You met her at a service station at 5.17 pm on your way to work and on her way home.

10At 5.45 pm the victim messaged her aunt who lives in Dubai, to the effect that you had touched her and raped her. Her aunt replied that she would tell the victim’s sister, and she tried to call her. At about 6 pm the victim’s sister arrived home and received the message from Dubai concerning the rape allegation. While crying, the victim told her sister that you had raped her. You were on the phone with her sister at the time, and her sister told you she would go to police. You told her that nothing had happened and begged her not to go to police.

11The victim attended a police station with her sister at 6.39 pm and reported the matter. You attended another police station at 7.31 pm and told police that you had been sexually involved with the victim at around 5:00 pm but that it was consensual sex, and you feared you were about to be accused of rape.

12In the following days you exchanged a number of messages with the victim’s sister in which you admitted to having sex with the victim but denied that it was forced.

13You were interviewed by police on 26 March 2019. In your record of interview you denied raping the victim but gave no further comment in relation to the matter.

14In October 2019,  you saw the victim’s cousin while you were providing security at a private party. You insisted on telling her cousin that you let the victim into the house, sat down next to her, and asked her about sex. She was curious, so you “showed her”.[5] You gave her a massage and it “went from there”.[6]

[5] Summary of Prosecution Opening for Trial [25].

[6] Ibid.

15You were formally charged on 28 November 2019.

16At trial, your defence was that the alleged slap on the bottom was intended to be a touch on the back which missed its mark and that the remaining sexual contact between you and the victim was consensual. You gave evidence to this effect.

17The jury must be taken to have rejected your sworn account and accepted the victim’s account, supported as it was by the complaint witnesses and by the relevant mobile phone and Facebook records.[7]

[7]        Trial exhibits 4, 5, 7, 8.

Victim Impact Statement

18The victim of your offending filed a powerful victim impact statement dated 15 May 2022,[8] which was read out in Court by the prosecutor at her request. She states that her life has been completely changed by your offending. She has “been living in a constant hell” due to her depression.[9] She suffers constant emotional pain, anxiety and flashbacks. She cannot experience joy. She cannot look at herself in the mirror and feels she cannot live with what you did to her. She does not go out or see friends. She does not know who to trust. She has lost her normal life and her dreams for the future. She spends her time sleeping or thinking of killing herself to stop the pain. She has had counselling but needs more. She pretends to her family that she is alright so that they do not worry about her, but she feels that she is ruined and is “not worthy to live anymore”.[10]

[8]        Plea exhibit 1.

[9]        Ibid.

[10]        Ibid.

Your personal circumstances

19You were born in Pakistan to a Hazara family which had fled Afghanistan due to persecution by the Taliban. The Hazaras continued to be persecuted in Pakistan, and your father was killed in a terrorist attack when you were 10. You had two brothers, but when you were aged 11 you saw your older brother killed in a bomb blast. Your mother and remaining brother now live in Austria.

20At 16 years of age, your family engaged people smugglers to bring you to Australia via Indonesia. After a two-month boat trip you arrived on Christmas Island, where you remained in detention from 2015. During that time, you continued your high school education, and formed a friendship with an English teacher and his wife, who continue to be supportive of you. You were issued with a Safe Haven Enterprise Visa and moved to Adelaide and then to Melbourne, where you worked at Woolworths while volunteering at a hospital. 

21You met the victim’s sister when you were 19 and she was 26. At first you did not know she was married with two children. You felt that your relationship with her was serious and you planned to propose to her. After her marriage ended, your relationship continued, and you often stayed at her home. In this context, the victim arrived from the Philippines to visit.

22You completed an Advanced Diploma of Legal Practice at RMIT in 2021. You married your fiancé in 2022.

23You have no prior convictions. You were assessed by psychologist Gina Cidoni, who reported on 13 May 2022 that you gave a history of sound physical health but unsafe daily living circumstances throughout your childhood as a result of belonging to the Hazaras,[11] which is a minority group persecuted in Afghanistan and Pakistan. You reported a stressful journey to Australia by boat at the age of 16. You reported symptoms including persistent low moods, constant worry, low energy, as well as problems with appetite, concentration and sleep.

[11]        Plea exhibit A.

24Ms Cidoni diagnosed you as suffering from a number of disorders: Post-Traumatic Stress Disorder; Adjustment Disorder; Major Depressive Disorder and Generalised Anxiety Disorder. She considered that you require therapy and skills training. She concluded that due to your psychological conditions you are finding prison more onerous than a person without these conditions, and that your depression and maladjustment will worsen in prison.

25You have been in custody since the verdict on 24 March 2022 and have 68 days PSD (not including today).

Sentencing submissions

26Your counsel conceded that the offending that founds Charge 2 falls into the mid-range of offending of this type, but submitted that the offending the subject of Charges 1 and 3 falls into the low range of offending of this type. He conceded that the only appropriate disposition was a sentence involving a head sentence and a non-parole period.

27In mitigation, he relied on your good character and references from your employer, your wife and the couple who have supported you since your detention on Christmas Island as speaking to your prospects for rehabilitation,[12] which should be viewed as positive, given that up until offending at the age of 24 you had made a successful transition into adult life after a most difficult upbringing and transition as a refugee to Australia. He emphasised that the traumatic childhood you experienced along with the trauma of travelling alone to Australia by boat at the age of 16 and enduring refugee detention for a number of years enliven Bugmy[13] principles. He submitted that additional protective factors include the support of your wife, employer and the couple who have known you since your time on Christmas Island, as well as the courses you may undertake in custody. He conceded that Ms Cidoni’s report did not provide cogent evidence of a link between your psychological conditions and your offending, but submitted that it supported the enlivenment of limb 5 of Verdins[14] in terms of the likely hardship you will face in custody. This hardship would be compounded by the fact that you will be likely held in protective custody at a time when COVID-19 restrictions still limit visits, and by the ongoing uncertainty you will face concerning your future residency in Australia.

[12]        Plea exhibits B-E.

[13]        Bugmy v The Queen [2013] HCA 27.

[14]        R v Verdins 16 VR 269.

28Counsel for the prosecution took no issue with the matters raised on your behalf in mitigation, apart from submitting that your prospects of rehabilitation should be viewed as reasonable, rather than as positive.

29In relation to the nature and gravity of the offence of rape, the prosecution drew attention to a number of aggravating factors. These included: that you took advantage of the victim’s need for assistance on the day; that she was your girlfriend’s younger sister; that although the offending was opportunistic, there was a degree of planning evidenced by your conduct in sexually assaulting the victim as she entered the house and then calling her out of her locked room;  that you physically overpowered the victim and held her down while you committed the rape and the second sexual assault; and that you raped the victim without using any protection.

30The prosecution also emphasised the devastating impact that your offending has had on the victim, and that over three years later she remains psychologically stricken, depressed and suicidal, and unable to undertake any of her normal activities let alone to live the life she had intended for herself.

31The prosecution noted that there has been no indication of remorse on your part, nor any cooperation in this case. In addition, he noted that the victim was cross-examined at both committal and trial, which were highly traumatising experiences for her.

32Finally, the prosecution emphasised the importance of denunciation, general and specific deterrence in the sentencing discretion. It was conceded that as all the charges arise from the same incident there should be substantial concurrency between the sentences imposed. It was submitted that in all cases involving comparable offending which ran to trial, the resulting sentences were ones comprising a head sentence and non-parole period.

33In relation to the discretion available to the court under the Sexual Offenders Registration Act 2004 (Vic), it was submitted that the court should not impose registration under that Act because there was no evidence upon which the court could be satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or the community.

Sentencing considerations

34The basic purposes for which a court may impose a sentence are those of denunciation, just punishment, general and specific deterrence, protection of the community and rehabilitation. Regard must be had to a range of factors, including the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim. The court is required to balance the interests of the community in denouncing and punishing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into society.

35In sentencing for rape, the sentencing principles of denunciation, just punishment, general and specific deterrence, and protection of the community, loom large.[15] I note that the standard sentence for the offence of rape, which takes account only of the objective factors of the offending, and not of the personal circumstances of the offender,[16] is one of 10 years imprisonment.[17] I also note that whilst I am required to take the standard sentence into account when sentencing you for the offence of rape, the standard sentence is a legislative guidepost akin to the guidance provided by the maximum penalty for an offence; it does not affect the assessment of the seriousness of the offence which is undertaken as part of the instinctive synthesis.[18] 

[15]        DPP v Short [2006] VSCA 120; DPP v Za Lian [2019] VSCA 75 [59]; DPP v Beck [2021] VSCA 88.

[16]        Sentencing Act 1991 (Vic) s 5A.

[17]        Crimes Act 1958 (Vic) s 38 (3).

[18]        Sentencing Act 1991 (Vic) s 5B; Brown v The Queen [2019] VSCA 286.

36As to the nature and gravity of the offending, I accept that all of the offending took place in the context of one incident, and I consider that the first sexual assault (Charge 1) was of a relatively minor nature. I also accept that the rape (Charge 2) and second sexual assault (Charge 3) occurred over a brief period. However, I consider that the following factors point to the seriousness of the rape committed by you:

(a)  You offended against your partner’s younger sister, who was living with her sister and entitled to feel safe in her sister’s home;

(b)  You took advantage of her vulnerability in needing your assistance to gain entry to the home;

(c)  You saw her reaction (running to her room and locking the door) after you slapped her on the bottom; 

(d)  You completely overwhelmed her physically by pinning her to the ground and holding her by the arms;

(e)  You did not use a condom when you penetrated the victim vaginally, thus exposing her to the risk of sexually transmitted disease; and

(f)  The impact of your conduct on the victim, as outlined in her victim impact statement, has been completely devastating to her, both psychologically and socially.

37For these reasons, I consider that this is a serious example of the offence of rape. I note that given the DNA evidence, the complaint evidence and evidence of phone calls and text messages, the Crown case in relation to this offence was a strong one.

38I consider that the second sexual assault was more serious than the first sexual assault because it was committed in the context of the rape. I also note that if sentenced to a term of imprisonment on charges 1 and 2, you fall to be sentenced on charge 3 as a serious sexual offender.[19] This means that protection of the community becomes a central sentencing consideration and the Court may impose a disproportionate sentence for that offence.[20] I note that the prosecution did not seek a disproportionate sentence and I will therefore not impose one. 

[19]        Sentencing Act 1991 (Vic) ss 6A, 6B.

[20] Ibid s 6D.

39I note that the matter ran to trial, with the victim being cross-examined at both committal and trial, and that there has been no indication of remorse on your part.

40I accept the matters put on your behalf in mitigation, in particular your prior good character, your traumatising background as a member of a persecuted minority group who as a child experienced the violent deaths of a father and brother; the challenges you faced in coming to Australia alone by boat as a teenage refugee, spending 2 years in detention; the efforts you made to educate yourself and obtain a higher education qualification; and the hardship you will suffer in custody (due to your psychological conditions, your being held as a protection prisoner, and to the anxiety concerning your future status in Australia). I also accept that you have the support of your wife and the couple who have known you since your time on Christmas Island. I have also taken into account that you are a relatively youthful man with no prior convictions who was only 26 years of age at the time of offending. I consider that your prospects of rehabilitation are reasonable.

41However, I do not accept that the principles of Bugmy are enlivened in your case. At paragraphs [40] to [44] of that judgment, the Court of Appeal explained that those principles are enlivened when an offender has been raised in an environment of alcohol abuse and violence, which leaves its mark on the offender which does not diminish with the passage of time and repeated offending, and which reduces the offender’s capacity to learn from experience and to stop offending. There is no evidence that you were raised in such an environment nor suffered that kind of deprivation. Indeed, you come before the Court with no prior convictions, and an admirable history of continuing your education whilst in detention, of completing a higher education qualification, and of being employed in the community. I consider that you bear high moral culpability for your offending.

42I acknowledge pursuant to s5B(5) of the Sentencing Act 1991 (Vic) that the sentence I am about to impose on charge 2 is lower than the standard sentence for the offence of rape, which is 10 years’ imprisonment for sentences which fall into the mid-range category. I have taken the standard sentence into account as part of the process undertaken to determine the appropriate sentence on charge 2, and I acknowledge that rape is a very serious offence. However, in all the circumstances of this case, I consider that it is appropriate to impose upon you a sentence on charge 2 that is lower than the standard sentence. Given that the three offences occurred as part of the one incident, I propose to impose sentences on charges 1 and 3 which are to be served concurrently with the sentence imposed on charge 2.

43On charge 2, rape, you are sentenced to seven years’ imprisonment, with a non-parole period of five years. This is the base sentence. On charge 1, sexual assault, you are sentenced to one months’ imprisonment, which is to be served concurrently with the sentence imposed on charge 2. On charge 3, sexual assault, you are sentenced to 3 months’ imprisonment, which is to be served concurrently with the sentence imposed on charge 2.

44I declare that there are 68 days of PSD, not including today, which are to be deducted administratively from this sentence.

45I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community, and I decline to impose registration under the Sex Offenders Registration Act 2004 (Vic) on you.[21]

[21]        Sex Offenders Registration Act 2004 (Vic) ss 11, 34.