Director of Public Prosecutions v Wol
[2019] VCC 373
•27 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00290
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICOLA WOL |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2019 | |
DATE OF SENTENCE: | 27 March 2019 | |
CASE MAY BE CITED AS: | DPP v Wol | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 373 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Assault with intent to rape – abscond – fifth limb of Verdins - no underlying sexual dysfunction
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Three years’ imprisonment with a non-parole period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C McConaghy | Office of Public Prosecutions |
| For the Defendant | Mr N Ngwenya | Kaprivi Legal |
HER HONOUR:
1 Nicola Wol, you have pleaded guilty to a charge of assault with intent to rape. The maximum penalty for this offence, which was committed on 26 January 2013, is 10 years’ imprisonment.
2 The circumstances of your offending are set out in the Summary of Crown Opening Upon Plea dated 24 March 2016 and I sentence you upon the facts set out in that document.[1] Those facts may be briefly stated here.
[1]I note that in a report dated 8 March 2019 (Exhibit B), Dr Joseph Poznanski, psychologist, recorded that during his two hour assessment of you in prison, you were able to communicate in English and gave him a detailed account of the incident the subject of the plea. Suffice it to say, that the account you gave him sits completely at odds with the facts set out in the Summary of Crown Opening. However, your counsel indicated that you did not rely on this portion of the report.
3 In the late afternoon on 25 January 2013, you and your victim, who did not know you, happened to be drinking at the same hotel pub. You introduced yourself to her. Later in the evening, your victim said she would be leaving soon as the pub would be closing. You invited her home to share some whisky. You arranged for the two of you to be picked up by a friend and dropped at your home. Once there, you had a drink. A short time later, you jumped on the victim, pushed her to the ground, put your hand and then your knee around her neck, removed her shoes, pulled down her pants and underwear and, as the victim struggled to free herself, you pinned her arms as well. You then used your other arm and legs to spread the victim's legs. She begged you to stop, telling you she was a mother. She felt your penis between her legs, touching her vagina. She tried to buck you off. Suddenly, you got off her, without saying anything, and went to the front of the house. She grabbed her track pants and ran out of your home, leaving her shoes and underwear behind. She ran up the road, rang two friends and her son, telling them that she had been raped. Her two friends came to meet her, and walked her home. Another friend stayed overnight.
4 The next day, one of her friends suggested that the victim report the incident to police and took her to see police. Police later recovered the victim’s shoes and underwear from your apartment.
5 The victim was examined by a male doctor on 26 January 2013 and his report noted a number of areas of redness, abrasions and bruising on her head and neck, both arms and both legs. He opined that the multiple bruise injuries on the inside of her arms were the result of blunt force trauma and suggestive of her arms having been pressed or held at these points. He also opined that facial redness and bruising to her upper right eyelid might have been the result of a compressive type force to the neck, causing increase in pressure in blood vessels of the head and possible leakage of the blood.
6 Fingernail scrapings taken from her right fingernails revealed a mixed DNA profile with a statistical weighting of 14; that is, moderate support for the prosecution proposition that you are a contributor. Fingernail scrapings of her left fingernail revealed a mixed DNA profile with a statistical weight of 250 million; that is, extremely strong support, for the prosecution proposition that you are a contributor.
7 You were arrested and interviewed on 26 January 2013. You agreed that you tried to have a relationship with the victim, but said that when she refused, you did not persist, and went to bed. You noticed that her shoes were still there but thought she was in the other room. You said that her underwear was there because she went into the shower room, but she did not have a shower.
8 You pleaded guilty on 30 November 2015 on the first day of the trial, but failed to appear at the plea hearing on 30 March 2016. A warrant was issued for your arrest. You were unable to be located until 28 September 2018, when you were intercepted by police and charged with driving offences and assault police. Those matters are yet to be finalised. You were remanded into custody in relation to the current matter on 1 October 2018. Not including today, there are 176 days of pre-sentence detention.
Victim Impact Statement
9 The victim made a Victim Impact Statement in March 2016 in which she states that during the assault she was terrified, couldn’t breathe and thought she was going to die. She was relieved to hear you puff from exhaustion while on top of her, and took the opportunity to flee when you got off her. For two weeks after the incident she suffered pain in her neck, torso and all her limbs. Three years after the incident, she continued to suffer neck problems. She worried every day when leaving the house. She struggled with sleep, and became a workaholic to help distract her from things that upset her. She had not returned to a hotel and had no desire to go out with friends. She was spending most of her free time alone with her dog.
Prior Offending
10 Your prior offending includes driving while disqualified (2007); unlawful assault, recklessly cause injury and fail to answer bail (2008); and, breaching an alcohol interlock condition, exceed the prescribed concentration of alcohol while driving, driving without effective headlights (May 2015). On the last of these occasions you were convicted and sentenced to a 12 month Community Correction Order (‘CCO’)
Personal Circumstances
11
Your personal circumstances are outlined in the psychological reports of
Mr Warren Simmons dated 23 February 2016,[2] and Dr Joseph Poznanski dated
8 March 2019.[3] You were born in South Sudan in 1968 and have a younger brother and younger sister. You were 45 years old at the time of offending and are now aged 51. Your parents were teachers and you lived comfortably in South Sudan until civil war broke out in 1993. You had a close family and a positive childhood. You completed your secondary education and wanted to become a pilot. Your family fled to Khartoum, in Sudan in 1993. Your mother and father died in the mid-to-late 1990s. Your mother died of an illness and your father was fatally wounded at home by a stray bullet from the street. You first married at the age of 22 and have two children from that relationship, which ended six years later.
[2]Exhibit A
[3]Exhibit B
12 You started drinking at the age of 22, and increased your consumption when you were living alone in Khartoum. You stopped drinking in 1999 but resumed drinking socially in 2004. You stopped drinking in May 2015 because of a drink driving charge.
13 In 2000, you fled to Egypt where you lived for 4 years and worked in a moulding company. You remarried in 2001 and have a son from that relationship who is now 20 years old. You and your family came to Australia as refugees in 2004. The marriage broke up in 2007. In 2009 you formed a relationship with another woman you knew from your time in Egypt, which resulted in the birth of a son who is now aged 9 and lives with his mother in Western Australia. You have worked hard in Australia doing various labouring jobs including forklift driving and spray painting but have been on WorkCover since June 2015 after suffering a shoulder injury at work.
14 You told Mr Simmons in 2016 that you had no previous psychiatric history. You told him that during the civil war you saw bodies on the streets and heard gunshots but that you did not experience any greater atrocities and reported no significant issues related to your experiences, such as flashbacks or associated problems. Mr Simmons recorded that you reported no issues with memory concentration, energy or motivation. You had a stable libido. He reported your mental state examination as “essentially unremarkable”. He found that you displayed no significant antisocial personality traits nor suffered from any psychiatric condition, particularly Post-Traumatic Stress Disorder (PTSD) given your experiences in Sudan. He noted that your exposure to violence was limited.
15 He noted your plea of guilty and that you could offer very little insight into what occurred, although he felt that your consumption of alcohol may have impaired your judgment, and you may have misinterpreted the victim coming to your home. He felt that there was no significant underlying psychosexual dysfunction to account for your offending. Using the Static 99 tool, which has not been validated against Sudanese men, he noted that your score was in the low range, suggesting that you are less likely to reoffend than the average sexual offender. He felt that you would benefit from some drug and alcohol counselling with a focus on relapse prevention strategies.
Defence Submissions
16 Your counsel relied on the reports of Mr Simmons, and on the PTSD diagnosis made by Dr Poznanski in 2019. I will return below to Dr Poznanski’s report. Your counsel also relied to some extent on the plea submissions filed on your behalf on 22 March 2016 by your former solicitor.
17 In his plea in mitigation, your counsel noted that the circumstances of the offending suggest that it was spontaneous, taken after you and your victim had consumed alcohol, and that you did not try to chase the victim as she left your apartment, but, rather, collapsed into a drunken stupor and awoke in a muddled state. You attended the police station of your own volition the next day after being advised that police wished to speak to you.
18 It was submitted that you absconded in March 2016 because you were unwell. There was no medical evidence provided in this regard. Your counsel stated that you expressed remorse to him for your offending, and indicated that you take full responsibility for it. You instructed him that you are in contact with your children in Africa and are paying child support to your two children in Australia. While in prison you have been obtaining some qualifications as a painter. You have apparently undertaken courses at Fulham Correctional Centre in English, Bible studies, and managing alcohol, and have provided the court with a certificate concerning the English course attended. He submitted that you have no relevant prior history and no subsequent relevant matters. Your subsequent history includes driving offences and assault police, although these matters remain outstanding. It was submitted that as you have been assessed as being at low risk of reoffending, protection of the community has less weight as a sentencing consideration than it would have otherwise.
19 I note that in the 2016 written submissions filed on your behalf, some emphasis was put on the delay between the offending and March 2016, a delay of some 3 years. No further submissions were made in this regard by your counsel at the plea hearing, presumably because you absconded in early 2016 and the further period of delay is wholly attributable to your failure to appear at the plea hearing listed in March 2016.
20 Your counsel relied on the diagnosis of PTSD made by Dr Poznanski in 2019 and submitted that limb 5 of Verdins[4] is enlivened in that the imposition of a term of imprisonment would detrimentally affect your mental health. It was submitted in all the circumstances that the relevant sentencing principles could be satisfied by the imposition of a combination sentence; that is, a term of imprisonment as well as a Community Correction Order.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’)
21 On 22 March 2019, your solicitor submitted four character references on your behalf. Your current partner since 2007 says that you have been a loving partner and were hardworking until you suffered an injury at work. You drink alcohol but have never been abusive towards her. Your daughter writes that you sponsored her, her mother and two brothers to come to Australia and that you helped settle them in. Your close friend says that he has known you since 2004 as a good father and hardworking, responsible family man, albeit that you have had a drinking problem which resulted in the break-up of your marriage. You have expressed shame to him for the life you have led in the past 12 years, and for going to prison. The President of a local community association, writes that before going to prison you assisted newly arrived refugees to locate appropriate government agencies and to choose the right school for their children. He says that you support your 16 year old son, and are a proud grandfather.
Prosecution Submissions
22 It was submitted by the prosecution that in terms of gravity, your offending lies at the upper range of seriousness for this kind of offending, because it went on for some time and involved significant violence and control exercised by you over the victim, and also because it only ended when you appeared to be overcome by exhaustion. It was noted that your offending was very frightening for the victim, who was being choked and felt she was going to die, and that, three years after the offending, she was still suffering significant psychological effects from the incident.
23
The prosecution submitted that in circumstances where you gave Dr Poznanski a detailed account of the events of the evening of the incident which denies any offending, I should have real concerns about accepting the balance of his report, particularly the diagnosis of PTSD. In any event, it was noted that
Dr Poznanski stated that your PTSD was unconnected with your offending and stated that you are functioning well as an individual. There is therefore no evidence that limb 5 of Verdins is enlivened, nor any evidence to support the need for a CCO to assist in your rehabilitation.
24 The prosecution submitted that the two principal sentencing considerations are those of just punishment and general and specific deterrence. In all the circumstances, it was submitted that a term of immediate imprisonment was the only appropriate disposition.
Assessment by Corrections Victoria
25 I note that on 26 March 2019 you were assessed as suitable to undergo a Community Correction Order, with conditions including supervision, community work, mental health, and treatment and programs to reduce reoffending. You expressed some insight into your offending, commenting you “hope it will never happen again”. The author of the report recommended that any sex offender program undertaken by you be delivered in your native language.
Sentencing Considerations
26 In sentencing you, I take into account the principles of denunciation, just punishment, general and specific deterrence, protection of the community as well as the seriousness of your offending, your culpability for it, and your personal circumstances. I also have regard to your prospects of rehabilitation. I must also balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.
27 Your offending is a serious example of this kind of offending. You subjected the victim to a protracted assault as described above. As at 2016, she indicated that the incident terrified her and left her with physical injuries and long-term psychological sequelae in terms of interference with her ability to go out and socialise.
28 I accept, however, that there is no history of relevant offending, nor any subsequent conduct of this type. I accept the opinion of Mr Simmons that you have no underlying sexual dysfunction and are at low risk of re-offending. I accept his opinion that the context of your offending included the relatively unusual consumption of alcohol and possibly, due to your lack of experience in initiating sexual activity in the Australian environment, misinterpretation of the victim coming to your home.
29 I attach little weight to the report of Dr Poznanski, which is flawed in many respects. It makes no reference to the Expert Witness Code of Conduct. It makes no reference to the documentation, if any, provided to him. The author appears to assume that you are disputing the charges[5], as his report contains a detailed account of the alleged incident which is tantamount to a denial of any offending. In parts of the report, the author is somewhat ambiguous about whether you witnessed your father being shot[6], while at section 5.1 of the report he states that you witnessed your father being shot dead, and that this sparked the onset of your PTSD. Elsewhere, he ascribes this event, and the death of your mother, as being the events which sparked your PTSD, but does not say when these symptoms arose, nor how it is that you have managed your life with those symptoms, but without any diagnosis or treatment, to date. His conclusion that you meet the criteria for four psychiatric disorders is completely unhelpful in that he fails to explain why the bulk of his report focuses on PTSD only.
[5]See, in particular, the introductory paragraph and section 3 on p 5 of the report.
[6]See section 2.1 of p 3 and the first paragraph of p 7.
30 In any event, even if I accept that, at the time he assessed you, you were suffering from symptoms of PTSD, there is nothing in his report, nor elsewhere in the evidence before me, to suggest that you are, because of this condition, having psychological difficulties in jail, nor that, since you have been in prison, your psychological condition has deteriorated. I note that he described you as being, overall, “a well-functioning individual”[7], in spite of your “being affected by a cluster of trauma related mental health issues”. Importantly, he does not state that there is a risk of your mental health (in terms of your PTSD) deteriorating in prison that would mean any sentence would weigh more heavily on you than it would on a person in normal health. Accordingly, I consider that limb 5 of Verdins is not enlivened.
[7]See section 5.2 of his report.
31 I accept the matters put in mitigation on your behalf. Your plea of guilty on the first day of the trial spared the victim from having to give evidence and saved the community the time and expense associated with a trial. It is also indicative of remorse. Whilst ordinarily, delay is a powerful mitigatory factor, in your case, over two years of that delay is due to your own conduct in absconding. Nonetheless, I have taken into account that you did not reoffend between 2013 and March 2016, as a matter justifying some confidence in your prospects of rehabilitation, provided you are able to deal with your issues with alcohol.
32 I also accept that you have made good use of your time in prison.
33 In all the circumstances, I consider that the gravity of your offending is such that only a term of imprisonment with a non-parole period, is appropriate to reflect the relevant sentencing considerations of denunciation, just punishment, general and specific deterrence and I do not consider in the circumstances that a combination sentence is appropriate.
34 Would you please stand, Mr Wol.
35 On the charge of assault with intent to rape, you are convicted and sentenced to three years’ imprisonment with a non-parole period of two years. There are 176 days of pre-sentence detention, not including today, and I direct that these be entered into the court’s records and deducted administratively.
36 I indicate, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to four years’ imprisonment with a non-parole period of two years and six months.
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