Director of Public Prosecutions v Youssef (a Pseudonym)

[2018] VCC 843

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI YOUSSEF (a Pseudonym)[1]

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Accused.

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	May 2018
DATE OF SENTENCE:	June 2018
CASE MAY BE CITED AS:	DPP v Youssef (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 843

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW       

Catchwords:   Rape – Trafficking in a Drug of Dependence to a Child – Possession of a Drug of Dependence

Legislation Cited:                 Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:  R v Verdins (2007) 16 VR 269
Sentence:  9 years’ imprisonment with a non-parole period of 6 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R Hamill (Plea) Ms K Hamill (Sentence)	Office of Public Prosecutions
For the Accused	Mr P Skehan (Plea) Mr A Brand (Sentence)	Slades & Parsons

HER HONOUR:

1       Ali Youssef[2], in March 2018 a jury convicted you of one count of rape (Charge 1), one count of trafficking in a drug of dependence to a child (Charge 2) and one count of possession of a drug of dependence (Charge 3).

[2] Ali Youssef is a pseudonym

2       The maximum penalty for rape is 25 years' imprisonment. The maximum penalty for trafficking in a drug of dependence to a child is 20 years’ imprisonment.  The maximum penalty for possession of a drug of dependence is five years' imprisonment.

3       The circumstances of your offending were set out in the summary of prosecution opening at trial and I sentence you on the basis of the relevant facts set out in that document.  I summarise them here briefly.

4       You were 31 years old at the time of the offending.  You were the owner of a shisha lounge. The victim had visited the venue approximately four to five times prior to the offending. 

5       On Good Friday in 2015, the victim attended upon your shisha lounge with two friends.  She arrived at around five in the afternoon.  You were introduced to her by a friend of hers and you offered the victim methylamphetamine (ice) in exchange for performing oral sex on you. You commented that if the victim were older than 16 years old, you would have penile/vaginal sex with her.

6       The victim offered to give you a kiss on the cheek in exchange for the drug.  The victim later walked to the toilet at the rear of the venue.  You followed her and kissed her on the lips.  You lifted the victim’s top and kissed her left breast. You turned the victim around, bent her forward and pulled her pants and underwear down.  You then inserted your penis into the victim’s vagina for a short time before removing your penis and ejaculating onto the toilet floor.  This conduct is the subject of Charge 1, rape.

7       The victim pulled up her pants and left the toilet.  She told one of her friends what had occurred.

8       A short time later, you came out of the toilet and approached the victim.  You handed her a small quantity of ice. This conduct is the subject of Charges 2 and 3, trafficking in a drug of dependence to a child and possession of a drug of dependence.

9       A short time later, the victim left the lounge with a friend.

10      The following day, the victim told her friend, Jason[3], that she had been raped by you.  He contacted some friends of his and arranged to confront you at the lounge.

[3] Jason is a pseudonym

11      The victim, two of her friends, Jason and a number of unknown associates attended the lounge and confronted you about the victim’s allegation of rape. You denied that you had raped the victim.  A short time later, the victim called 000 and reported the offending to police.

12      Police members then attended upon the victim and took her to a Sexual Offences and Child Abuse Investigation Team Unit (“SOCIT Unit”).

13      The victim disclosed to SOCIT members that she had been raped by you and provided with ice by you.  The victim still had the ice on her person and she provided this to one of the SOCIT members.  The victim’s friend, to whom the rape was first disclosed, also attended the SOCIT unit and confirmed this disclosure to SOCIT members.

14      The victim was later conveyed to hospital where a forensic examination was conducted and forensic samples were obtained from the complainant.  The victim’s clothing, underwear and bra were also seized.  DNA testing established “extremely strong support” for your DNA being present on the gusset of the victim’s underwear and “very strong support" for your DNA being present on the centre back and right leg opening of her underwear. The testing of a sample from the inner surface of the victim’s left bra cup was taken and also established “extremely strong support” for your DNA being on the item.

15      On 5 April 2015, the victim went again to the SOCIT Unit and participated in a Visual Audio Recorded Evidence (VARE) process.

16      On 30 April 2015, you were arrested at your home and conveyed to the shisha lounge where a search warrant was executed in your presence.  Following this, you were conveyed to a police station where a record of interview was conducted.  You denied raping the victim. On 8 June 2016 you were charged with the current offences.

17      At trial, you admitted that you touched the victim on the breast in the toilet but said that this occurred with her consent.  You denied raping the victim.  You denied supplying her with ice.  By its verdicts, the jury rejected your account and was satisfied beyond reasonable doubt that on or about 3 April 2015, you raped the victim, that you possessed the ice and that you supplied the victim with ice.

18      Your bail was revoked upon the verdict being delivered and you have spent 106 days in custody.

19      The victim attended the plea hearing via the remote witness facility.  She and her mother provided victim impact statements which were read out in court at their request.  In her statement, the victim stated that her life has changed as a result of your offending. She has constant distressing thoughts about the incident, has trouble sleeping, cries at night and suffers nightmares relating to the incident.  She is constantly anxious and afraid, and too scared even to talk to a professional for fear that the discussion will prompt more anxiety and fear. She is afraid when going out.  She feels worthless and, since your offending, has given up her dreams of becoming a model because of her fear of receiving unwanted attention.

20      The victim’s mother stated that prior to your offending the victim was an outgoing, confident person, always out with friends. Since your offending, the victim has had trouble talking about her emotions, has mostly stayed at home, suffers constant anxiety, and regular nightmares which interfere with her sleep.  She no longer feels safe and no longer feels good about herself.

21      You have no prior convictions.

22      Your counsel tendered brief written submissions, various medical reports detailing your mental health condition and treatment between mid-June 2016 and early 2018 and, most recently, a psychological report of Dr Pamela Matthews dated 11 May 2018.  Your counsel also tendered a bundle of 20 character references from your relatives, friends, community and religious leaders to the effect that, in spite of your mental health problems, you are a loving husband, father, sibling, cousin, hardworking community member, mentor, as well as an honest and hardworking man. I have taken all of this material into account.

23      Your personal circumstances were set out in Dr Matthews' report.

24      You are 34 years old and were 31 years old at the time of the offending.  You were born in Afghanistan to educated parents, and have two siblings. In about 1996, when you were about 12 years old, the Taliban launched a grenade attack on your home which killed your grandfather, seriously injured your mother, and traumatised you. After the attack, you heard voices for days, were sleepwalking and did not speak for a few months.

25      Your family fled to Iran and lived there for nine to ten years.  You completed the equivalent of Year 10, and were an above average student.  You worked as a bricklayer. Your family is Sunni Muslim and you were subjected to racism in Iran, where the majority of the population is Shi’ite Muslim.  You married in Iran, came to Australia in 2004, and became an Australian citizen in 2005.  You are happily married with two young children.  You bought a house in 2009.

26      You attended English classes, worked in a factory and then started a courier business which you later sold in 2013.  Unfortunately, the buyer reneged on the final payments due under the sale, and you were left substantially out of pocket. You then opened a shisha lounge in 2013, providing fruit and herb flavoured smoking pipes, coffee, tea and sweets. The café did well at first but had to close for repairs after being damaged in an arson attack, apparently by local criminal elements. After the café reopened, the business struggled and you sold the family home in order to pay rent on the shop. You were locked out of the shop by the owner after being charged with these offences.

27      You told Dr Matthews that you were not guilty of these offences but felt guilty for having what you claimed was consensual sex with a 16 year old girl, and hoped your wife would forgive you.  You told her that you had used ice monthly for about a year since you had the café, and that it was offered to you by friends who visited your café.  You told her that you were happily married, attended the local mosque once or twice per day, do not drink, gamble or view pornography.

28      The voices that you heard in Afghanistan returned to you after your café was shut down in mid-2016. Dr Matthews considered that extreme psychosocial stress precipitated the return of this voice, and noted that in early 2018 you had been diagnosed with depression with psychotic features by Dr Sugamaran. When Dr Matthews assessed you in early May this year, she considered that you met the criteria for moderate to severe major depressive disorder.  She did not consider that your mental state caused your offending; rather, she felt that your mental state was caused by the psychosocial stress of the loss of your business and the current charges.  She noted that you are currently very unwell mentally, and not improving in spite of the treatment you are receiving in prison. For this reason, she considered that time in prison is exacerbating your mental health issues. She considered that because of your mental health issues you are likely to isolate yourself in your cell, and because of your anxiety around your safety, to experience an exacerbation in your post trauma symptoms. She concluded that any time you spend in custody is likely to be more burdensome for you than for most others in the prison system. She recommended that you receive ongoing counselling as well as medication for your symptoms.

29      Dr Matthews considered that you are at low risk of sexual reoffending because you do not have a personality disorder, do not condone sex outside marriage, have been in a long term sexually intimate relationship for 13 years, and because there was no paraphilia or sexual deviance associated with the rape, which was opportunistic in nature. She noted that you have managed to develop two businesses and buy your own home and concluded that you do not have problems with planning. In addition, she noted that you have been compliant with medical treatment and with supervision.  However, Dr Matthews noted, with concern, that you exhibit problems with stress, childhood trauma, major mental illness, substance abuse, suicidal ideation, and with trust and forming non-intimate relationships outside the family.

30      In his submissions, your counsel conceded the seriousness of your offending, but submitted that the rape was opportunistic and of short duration, that you did not ejaculate inside the victim, that she was not threatened or physically injured  at the time and that the drugs were supplied after the rape (and not before it).  For these reasons, your counsel submitted that in terms of gravity the rape falls in the low to middle range in relation to this kind of sexual offending. Your counsel emphasised your traumatic childhood, absence of prior convictions, stable family and strong support of family and community. Your counsel relied on Dr Matthews’ report as supporting a finding that Verdins[4] principles 5 and 6 apply to you, in that you are likely because of your mental health condition to find gaol more burdensome than another person without your condition, and that your mental health is likely to deteriorate in prison.  Your counsel also relied on the ongoing distress you experience at not being able to be visited by your young sons as a further example of your time in prison being more burdensome.

[4]R v Verdins (2007) 16 VR 269 (‘Verdins’)

31      Counsel for the prosecution submitted that in all the circumstances, the sexual offending is towards the mid-range of seriousness. In this regard, the prosecutor noted that you raped a vulnerable young woman, using some force, in a public place, without using a condom, and threatened her afterwards that you would find her if she reported it.  He conceded that the drug offending was in the low range, but submitted that whether or not the victim had used ice before was irrelevant, as you supplied it to her.  He submitted that there should be some cumulation in the sentences on Charges 1 and 2 but that any sentence on Charge 3 could be made concurrent with that imposed on Charge 2. He conceded the relevance of Verdins principles 5 and 6 but submitted that as the decline in your mental state followed upon your being charged with the offending, there was still a role for specific deterrence in any sentence imposed upon you.

32      I note that while conceding that sentencing on this case turns on its specific facts, each counsel referred me to a number of cases in the VSCA Overview of Rape sentences, and I have considered all of those to which I was referred.[5]

[5] Allen v The Queen [2013] VSCA 263; Bakshi v The Queen [2018] VSCA 83; Hajar v The Queen [2015] VSCA 233; Hasan v The Queen [2010] VSCA 352

33      General and specific deterrence, denunciation and just punishment are the principal sentencing considerations in your case, along with rehabilitation. 

34      In relation to the offence of rape, I consider in all the circumstances that your offending is serious. There are some aggravating features of your conduct. There is a substantial disparity in age between you and the victim.  The rape was committed against a 16 year old girl who was alone and isolated in the toilet. You did not use a condom.[6] You threatened her afterwards. I acknowledge the absence of other aggravating features such as pre-planning or physical injury to the victim.  I also note that your lack of remorse is to be treated only as the absence of a mitigating factor.[7]  On the other hand, the matter went to trial. The impact of the rape on the victim has been very considerable. Her sense of safety and confidence in herself has been completely undermined, she suffers ongoing anxiety and nightmares, and her former outgoing and social personality has completely changed.  She is afraid to go out, and has given up on her career ambition because of her fear of attracting unwanted attention. I acknowledge that you have no prior convictions, no sexually deviant tendencies, a supportive family and social network, and are unlikely to reoffend.  I consider that Verdins principles 5 and 6 do apply and I take into account that your current psychological condition may deteriorate in prison and that because of this condition you will find prison more burdensome than a person not suffering from such a psychological condition.

[6]R v Khem (2008) 186 A Crim R 465, 468–9 [14], 470 [18], 472–3 [34]

[7]R v Raimondi (1999) 106 A Crim R 288; [1999] VSCA 101 at [11]

35      I consider that your drug offending falls at the low end of the range for such offending.  However, I consider that some measure of cumulation is warranted between the sentences on Charges 1 and 2, because they are discrete offences and occurred at slightly different times.

36      I propose to sentence you as follows. Would you please stand.

37      On Charge, 1, rape, you are sentenced to eight years and nine months’ imprisonment.  This is the base sentence.  On Charge 2, trafficking in a drug of dependence to a child, you are sentenced to six months’ imprisonment.  On Charge 3, possession of a drug of dependence, you are sentenced to imprisonment for a term of one month.  I direct that three months of the sentence on Charge 2 is to be served cumulatively upon the sentence imposed on Charge 1.  The total effective sentence is therefore one of nine years’ imprisonment.  I fix a non-parole period of six years.  I declare that 106 days of pre-sentence detention is to be deducted administratively from this sentence.

38      The offence of rape, for which you have been convicted, is a registrable offence pursuant to the Sex Offenders Registration Act and, by reason of your conviction for that offence, you are a registrable offender and obliged to comply with the reporting conditions imposed by the Act.  In your case, the reporting will be for a period of 15 years.[8]

[8] Section 34(1)(b)(i) Sex Offenders Registration Act 2004 (Vic)

39      I am required to give you written notice of the reporting obligations and the consequences that may arise if you fail to comply with these obligations.  I am also required to inform you of the length of the reporting period, which as I have just announced, is for 15 years.  I will invite your counsel, together with my Associate, to shortly hand you the written notice.

40 The prosecution has also sought an order pursuant to s464ZF of the Crimes Act1958 (Vic) in relation to the taking of a forensic sample, and you have consented to that order through your counsel. I will make that order because you have consented to it and because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.

41      In making this order, I need to inform you, Mr Youssef, that I am signing the order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database.  I advise you that if at the time of the request for such a sample is made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand?

42      OFFENDER:  Yes.

43      HER HONOUR:  Lastly, the prosecution also sought a forfeiture order in relation to three substances, each in the form of white crystals.  You have consented to that order through your counsel and I will make that order.

44      Are there any other matters that need to be addressed?

45      MS HAMMILL:   No, Your Honour.

46      HER HONOUR:  Mr Brand?

47      MR BRAND:  No, Your Honour.

48      HER HONOUR:  In that case, we will just provide you with the written conditions.

49      Mr Brand, there is another matter that is going to come on shortly.  Do you want a bit of time in court with Mr Youssef before he is taken down?

50      MR BRAND:  No, that's all right.

51      HER HONOUR:  You will see him downstairs?

52      MR BRAND:  He is aware of the - - -

53      HER HONOUR:  All right.  In that case we will adjourn, thank you.

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