DPP v Abdi

[2020] VCC 1668

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01959

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDURAHMAN ABDI

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August & 6 October 2020
DATE OF SENTENCE:	15 October 2020
CASE MAY BE CITED AS:	DPP v ABDI
MEDIUM NEUTRAL CITATION:	[2020] VCC 1668

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence

Catchwords:          Rape

Legislation Cited:   Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited: The Queen v Willis [2019] VSC 398; Astbury v The Queen (No 2) [2020] VSCA 158; DPP v Macarthur [2019] VSCA 71.

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes (For Plea) Ms F. Coppini (For Sentence)	Ms F. Coppini, Solicitor for Public Prosecutions
For the Accused	Mr J. Anderson (For Plea) Ms L. Altoon (For Sentence)	Slades & Parsons

HER HONOUR:

1Abdurahman Abdi, you have pleaded guilty to one count of rape.  It is a
rolled-up charge, where you digitally penetrated the victim on two occasions.  The maximum penalty for this offence is 25 years' imprisonment.

2The summary of prosecution opening has been read to the Court and tendered.  It is agreed that it is an accurate account of events.  It includes references to other misconduct evidence that is not covered by the indictment.  This evidence forms part of the narrative and places the charged act into context.  A general summary of the facts is as follows:

3The victim in this matter was 25 years old and worked as a secondary school teacher.  On Friday, 7 June 2019, she met up with friends at a bar in Footscray at around 5.45pm.  She drank two pots of beer before going to another bar, where she continued to socialise and to drink alcohol.  The victim did not stay there for long.  She had arranged a date at 8:30pm.  Approximately 45 minutes later, the victim and her date re-joined her friends at the bar.  The victim continued to drink alcohol and estimates that she consumed approximately 8 pints of beer between 5:00pm and 11:45pm, at which time the victim’s date and all her friends had left the bar. 

4At approximately 12:00am am on 8 June 2019, the victim attempted to leave but was confused about the location of the exit.  The owner of the bar approached her and asked if she had arranged transport home.  The victim said that she would get an Uber and walked out onto the street.  The owner of the bar escorted her, assisting her to hail a taxi near the corner of Nicholson and Barkly Streets, Footscray.  He noticed that she was a little unsteady on her feet.

5The driver of the taxi asked the victim where she wanted to go but she was too intoxicated to articulate her address or to give directions.  The taxi drove around for about 10 minutes.  During that time the victim vomited out of the front passenger seat window.  The taxi driver pulled over in French Street, Footscray at around 12:21am.  He asked the victim to leave the taxi. 

6The victim then got into another taxi, a white Toyota Camry that was driven by you, Mr Abdi.  After one minute, she got out in Barkley Street, Footscray and walked in an easterly direction.  You searched for the victim for the next three minutes, performing a series of U-turns and circling a number of blocks, attempting to locate her. At 12.25am, you observed the victim in a car park behind the Footscray Library.  You pulled over and waved at her to come back into your taxi.  The victim got into the front passenger seat and you drove her through the Footscray area for approximately five minutes.  She was struggling to maintain consciousness, due to her level of intoxication. 

7At 12.30am, you stopped the taxi and the victim leaned out of the window to vomit.  You tilted the internal CCTV camera downward, changing the angle of the footage that was recorded.  Despite that, the camera continued to capture both of you from the neck down. You pulled the victim back into a seated position before handing her belongings to her and asking for payment.  The victim was unable to comply and remained limp, while holding her EFTPOS card and other property.  She attempted to leave the taxi.  You physically restrained her, taking the EFTPOS card from her hand and using it to process payment at 12:39am, in the amount of $26.26.  After the payment was made, you dropped the victim’s EFTPOS card into the driver’s side foot well.  The victim was unable to locate the card and you got out of your seat to look for it.  During that time the victim appeared to fall asleep and became still. 

8At 12.42am, you leaned over and using your right hand, you pulled the victim's right thigh towards you, opening her legs.  You placed your right hand between her thighs, inserting your fingers into the victim's vagina.  You digitally penetrated her in a thrusting motion for approximately two minutes.  The victim remained limp and unresponsive. She recalls, however, waking up and feeling your fingers inside her vagina.  She thought that she was having a “sex dream”, but then realised what was occurring.  You momentarily stopped the penetration as a car passed by. 

9You then reached over and using your left hand to rub the victim's vagina through her underwear, you moved her underwear aside to digitally penetrate her with your index and middle fingers.  The victim could feel your hand through her underwear “playing” and “touching” the exterior of her vagina. The victim whimpered, but you did not stop.  You asked her, “Do you like it?” or “Is this nice”.  You moved your fingers continuously in and out of her vagina for about one minute.  The victim remained unresponsive and limp.  She describes that you were, “really going for it”.  She was shocked and she froze.  She did not push you away but just waited for it to end.  The victim felt compelled to “let it happen” as she wanted to go home. 

10You readjusted the angle of the camera inside the taxi, tilting it down further.  You then removed your erect penis from your pants, holding it momentarily before grabbing the victim's right hand and moving it towards you.  The victim pulled her hand away and you put your penis back inside your pants.  You began to rub the victim's vagina through her underwear with your left hand, for approximately one minute.  The victim remained limp and was not conversing with you. You then opened a bottle of water and washed your hands outside your door, before starting the taxi and driving away.  The victim appeared to be asleep for the balance of the trip home, until she pointed out her house in Sunshine.  At 1:02am she got out of the taxi.  You recovered the EFTPOS card and gave it her before you drove away. 

11The victim woke up at approximately 5:00am and recalled what had happened.  She immediately reported the incident to the police and an investigation commenced.  After the victim had disclosed details of your actions, she was conveyed to the Sunshine Hospital where she underwent a forensic examination.

12At 8.45pm on 8 June, investigators were able to locate you and asked about your whereabouts that morning.  They attempted to have the taxi's CCTV footage downloaded, but you locked the taxi and left.  You did not assist the police.

13On Saturday, 12 June 2019 at approximately 3:45pm, you were intercepted by police when driving the taxi.  You were arrested and taken to the City West Police Station.  You participated in a record of interview, answering “no comment”.  Your vehicle was seized and the in-car CCTV footage was downloaded.  You were released until 15 June 2019 when you were arrested at your home.  The CCTV footage from the taxi clearly showed the offending and you were interviewed again.  You provided another “no comment” record of interview. 

14Expert evidence establishes that the victim had an estimated blood alcohol reading of between 0.162 and 0.269 per cent at the time of your offending.

15A Victim Impact Statement, dated 3 February 2020, has been prepared and read to the Court.  Not surprisingly, the victim has described this violation as traumatising and very distressing.  After this event occurred, her self-esteem was impacted, affecting both her personal and professional life.  She felt uncomfortable in the presence of males.  The victim still has flashbacks that make her feel uneasy.  She wants to put this incident behind her and has expressed her gratitude to the police who have conducted the investigation. 
I take the content of her statement into account.

16The act of rape is inherently serious, being an act of violence.  You have physically violated the victim. You were engaged to provide a service to her and in that process, you breached the trust she placed in you. You took advantage of a vulnerable person who was alone and intoxicated.

17On each occasion, the timing of the digital penetration was relatively confined.  The first instance went for approximately two minutes, the second for about one minute.  Although the offending occurred over a relatively short period of time, it cannot be categorised as momentary.

18Your conduct was predatory when you located the victim after she left your taxi and you beckoned her to re-enter your vehicle.  I accept that there was limited premeditation, but your actions were not completely spontaneous. Further, you attempted to avoid the recording of your conduct on the internal CCTV camera.

19Non-consensual digital penetration is objectively serious and you accept that.  Fortunately, you did not use threats or excessive violence towards the victim, nor is it alleged that she suffered any physical injuries from your conduct.

20Taking all the circumstances of this offence into account, in particular the vulnerability of the victim and the breach of trust, I consider this to be a serious example of this type of offending.  You accept that the gravity of your misconduct warrants the imposition of a term of imprisonment. 

21You were charged with this offence on 15 June 2019 and remanded in custody.  Your matter resolved to a plea of guilty at the first committal mention on 26 September 2019.  The prosecution agrees that you have entered your plea of guilty at the earliest opportunity. It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  You have spared the victim the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant given that no jury trials are currently proceeding in light of the current COVID‑19 pandemic. 

22You do not have a relevant criminal history.

23You were born on 28 March 1986 in Djibouti, Africa, and you are now 34 years of age.  You were assisted during the plea hearing by an interpreter in the Oromo language.

24Your mother was killed when you were approximately seven years old; a traumatic experience for you.  In 1993, your father came to Australia.  He sponsored you and your three siblings to emigrate here in 1996.  You were approximately 10 years old at the time and are now an Australian citizen.  Your father remarried.  You feel that he preferred his relationship with his new partner and their children.  Your relationship with your father deteriorated when you were a teenager. You are now estranged.  Between the ages of 16 and 21 years, you were homeless.  During this time, you were required to “sleep rough” and you engaged with homeless services, such as the Melbourne City Mission, in order to access accommodation.

25You attended St Albans Primary School where you learnt to speak English and then St Albans Secondary College.  You unstable relationship with your father coincided with difficulties you had at school and you left in Year 10. 

26You have a strong history of employment.  Since leaving school, you have worked in a variety of unskilled jobs including working as a labourer, in a factory and at a warehouse. 

27You have worked as an Uber driver or driving taxis for approximately 10 years.  You purchased your own taxi in 2018 and have been self-employed since that time.  In June 2019, you were working up to 14 hours per day, approximately six days per week.  Despite these long hours, your financial return was limited.  Your net income was between $100 to $200 per day.

28You were married in 2013.  You and your wife have three children, aged between one to six years old.  You reside in public housing in Footscray.  Your oldest child has developmental and behavioural issues.  He has been diagnosed with a mild intellectual disability and with Autism Spectrum Disorder.  He is currently a student at a specialist school for children with high needs.  His school has recently been closed, due to the Stage 4 lockdown and your wife has had the burden of caring for him full-time, on her own, over the past few months.  She has no support in Australia from her own family.  Your two younger children attend childcare.

29In a letter written to the Court, dated 4 August 2020, your wife describes you as being a very loving father who provided her with significant support when you were at home.  Prior to this incident, your life revolved around your work and your family.  The separation from them has been devastating for you. 

30You were the primary income earner before you were remanded and your wife has been in receipt of benefits since that time.  She has not been financially disadvantaged, however, as your income was relatively low. 

31It is not disputed that your family and your wife in particular, will suffer hardship as an inevitable consequence of your imprisonment.  I accept that you will suffer significant anguish as a result of your inability to physically and financially support your family, which will result in your time in custody being more onerous.  In her letter to the Court, your wife confirms that notwithstanding the enormous shock she has undergone as a result of your offending, she has forgiven you.  You have maintained her support and your intention is to return to live with her and your children upon your release from custody.  You intend to study, in order to obtain different employment.

32Your wife has indicated that at the time of your offending, you were concerned about the family income and financial situation.  She believes that you were using alcohol to a problematic level, attempting to cope with that stress. There is no suggestion, however, that you were affected by alcohol at the time of this offence.

33You do not have a history of drug abuse, nor do you have any physical or mental health issues. Over the last 16 months in custody, you have participated in a number of educational and vocational programs.  The availability of these programs is more limited at the moment.  You are prepared to participate in the appropriate sex-offender courses as directed while in custody and on parole.

34I am aware that measures taken by Corrections to deal with the COVID-19 pandemic have added to your hardship as a prisoner.  The prosecution concedes as much.  This is not only due to your personal position of confinement but also due to the hardship you have undergone being absent from your family and being unable to care for them in the current environment.  I accept that you may feel more vulnerable to the possibility of infection from the virus, in light of your incarceration.

35Prior to the current restrictions imposed by Corrections, you had regular contact with your wife and children as well as other family members.  Since March 2020, you have been unable to receive any personal visits which has increased the burden of your imprisonment. The frequency of your accessibility to video calls has varied due to lockdown and other COVID-19 measures.  You speak to your wife most days on the phone but your contact with your children has recently been infrequent and is a poor substitute for physical contact with them.

36The Court of Appeal acknowledged in Ashbury v The Queen (No.2)[1] that overall, these hardships justify a sentencing benefit.

[1] [2020] VSCA 158.

37While you recognise the seriousness of your conduct, you are unable to explain why you acted in the way you did on this occasion.  It appears that you have undertaken a period of self-reflection while in custody.  You have disclosed your offending to your wife and to your family.  You acknowledge that you are ashamed of your serious misconduct and that you have made a grave mistake.

38In a character reference provided by your brother, he writes that you have been using your time to rehabilitate with deep critical thinking and self-reflection.  You have expressed to him your regret and remorse for your conduct when he has visited you in custody. 

39Your expressions of remorse are consistent with your early plea of guilty and I accept that you have taken responsibility for your conduct.  I am prepared to moderate your sentence to reflect that.

40When considering your future prospects, your remorse and your early plea are relevant. Your lack of criminal history is also relevant, particularly in the context of your difficult start in life.  Character references confirm you will return to a supportive family environment upon your release.  You have a strong work history, although it is unlikely that you will be able to obtain future driver accreditation from the Taxi Directorate.  You will have access to sex offender programs and be the subject of parole upon your release from custody.  In all those circumstances, I find that you have good prospects of rehabilitation.

41You have pleaded guilty to one count of rape, being a Category 1 offence.  The court must make an order for imprisonment.[2]  It is conceded by your counsel that a significant term of imprisonment with a non-parole period is the appropriate disposition in your case. 

[2]Sentencing Act 1991 (Vic) s 5(2G).

42The charge of rape attracts the standard sentencing provisions.[3]  The standard sentence is one where the Act specifies the appropriate sentence for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.[4] 

[3] Ibid ss 5A; 11A.

[4] Ibid s 5A(1)(b).

43It is one factor to be considered when imposing sentence. 

44The relevant standard sentence is 10 years' imprisonment.

45Objective factors are to be determined by reference to the nature of the offending “to the extent that it illuminates your actions”.[5] They are to be determined without reference to matters personal to a particular offender.[6] 

[5]The Queen v Willis [2019] VSC 398.

[6]Sentencing Act 1991 (Vic) s 5A(3)(a).

46There are a number of factors that are relevant when assessing the objective gravity of the offending.  These include:

(i)        The victim was not known to you. 

(ii)       She was extremely vulnerable being so affected by alcohol. 

(iii)      The victim was alone in your company. 

(iv)After she left your taxi you searched for the victim before locating her and waving her back into your taxi. 

(v) I consider that you grossly abused your position as a taxi driver. The victim relied on your service in order to get home.  This is a significant breach of trust.

47I take the standard sentence into account as one of the factors that is relevant to the instinctive synthesis of imposing sentence.  I accept that it is a guidepost, to be considered when determining the appropriate sentence in this case.  I also take the maximum penalty into account.

48I have been referred to several sentences for rape that fall within the standard sentencing provision.  I have considered those and taken them into account.  In addition, I am required to fix a non-parole period which is at least 60 per cent of the total effective sentence, unless it is in the interests of justice not to do so.[7]

[7] Ibid s 11A.

49There is no discrete category of rape for digital penetration, nor is there a hierarchy of the seriousness of penetrative offences.  While digital rape does not ordinarily involve some of the risks associated with penile rape, being unwanted pregnancy or transfer of a sexually transmitted disease, it is not necessarily less serious.  It involves an assessment of the gravity of the offending on the particular facts of any case.[8]

[8]DPP v Macarthur [2019] VSCA 71 [81].

50In assessing the gravity of your offending, I take into account that it did not carry with it some of these risks. 

51The offence of rape is a Schedule 2, Class 2 offence pursuant to the

[9]Sex Offenders Registration Act 2004 s 34(1)(a) (‘SORA’).

Sex Offenders Registration Act.  The court has a discretion to make such an order.  If the application is granted, the length of the reporting period is eight years.[9] 

52The prosecution is seeking that you be placed on the register.  That application is opposed. 

53Section 11(3) of the Act provides:

“The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.” 

54The prosecution relies on a number of factors to establish that you do pose a risk to the sexual safety of women who are in similar state to the victim, namely:

·The serious nature of the instant offence.

·The offending occurred in the course of your employment.

·You committed a gross breach of trust.

·The predatory nature of your conduct.

·The vulnerability of the victim.

55In response, the defence refers to a number of factors, namely:

·You have no prior convictions.

·You have pleaded guilty to the charge accepting responsibility and demonstrating remorse for your conduct.

·The deterrent effect of a lengthy term of imprisonment. 

·You will receive sex offender treatment while in custody. 

·You will be released subject to parole. 

·You have the ongoing support of your family. 

·You intend to obtain alternative employment rather than return to work as a taxi driver.

56There is no expert report or opinion that addresses the question of risk of reoffending. 

57The onus is on the prosecution to satisfy the court that you pose the relevant risk at the time you are released from custody, beyond reasonable doubt.  In light of your lack of criminal history, your plea of guilty, your good prospects of rehabilitation and supervision on release, your ongoing family support and the likelihood that you will be unable to return to work as a taxi driver, I am not satisfied to the requisite standard as to the existence of risk. 
I do not propose to make the order.

58The seriousness of your offending has been conceded.  In light of the gravity of your conduct, a lengthy term of imprisonment is the only appropriate disposition.  I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation, punishment, and protection of the community.  I consider that specific deterrence must have some weight in the sentencing process, although in a more limited way in light of your lack of criminal history. I am also required to balance your sound prospects of rehabilitation.  In my view, a lengthy period on parole is appropriate in your case.

59Balancing these factors as best I can,

60You are convicted and sentenced to six years' imprisonment. 

61I fix a non-parole period of three years' and ten months.

62Had the matter not proceeded as a plea of guilty, the declaration I make under s.6AAA, is seven years and six months with a minimum of five years and two months. 

63I enter into the records of the court, that you have served 488 days by way of pre-sentence detention.

64Are there any further orders sought, Ms Coppini?

65MS COPPINI:  No, Your Honour.  That is the extent of it.

66HER HONOUR:  All right, thank you, Ms Coppini. Ms Altoon, if you would like to remain on the link with Mr Bachera and your client, I will adjourn the court.  I confirm that my associate and tipstaff will have to remain in the course of the discussion.

67MS ALTOON:  Thank you, Your Honour.  I would appreciate a short period, yes.

68HER HONOUR:  All right. Thank you.

69MS ALTOON:  As Your Honour pleases.

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