DPP v Alanazi
[2022] VCC 140
•14 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01904
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULLAH ALANAZI |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATES OF TRIAL: | 20 January 2022 – 27 January 2022 |
DATE OF HEARING: | 3 February 2022 |
DATE OF SENTENCE: | 14 February 2022 |
CASE MAY BE CITED AS: | DPP v Alanazi |
MEDIUM NEUTRAL CITATION: | [2022] VCC 140 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentencing
Catchwords: Rape – non-guilty plea – trial – sleeping victim – strong prospects of rehabilitation – delay – youth – Covid-19 pandemic
Legislation Cited: ss 5, 5B(2)(b), 18 Sentencing Act 1991 (Vic); s 11(6) Sex Offenders Registration Act 2004
Cases Cited:Arthars v The Queen [2004] VSCA 222; Azzopardi v The Queen (2011) 35 VR 43; Brown v The Queen [2019] VSCA 286; McPhee v The Queen [2014] VSCA 156; Plater v The Queen [2013] VSCA 258; R v Merrett, Piggot and Ferrari [2007] VSCA 1; R v Mills [1998] 4 VR 235.
Sentence:5 years’ imprisonment with a non-parole period of 2 years and 10 month’s imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. FitzGerald | Office of Public Prosecutions |
For the Accused | Mr J. Taaffe | Doogue + George |
HER HONOUR:
1 Abdullah Alanazi, following a five-day trial on 27 January 2022 a jury found you guilty of one charge of rape that was committed on 8 February 2019. The maximum penalty for rape is 25 years' imprisonment. The standard sentence for rape is imprisonment of 10 years. As rape is a category 1 offence, a sentence of imprisonment is mandatory.
Circumstances of the offending
2 By way of background, at the time of this offence you were living in Australia, having arrived here earlier on a student visa. You were residing in an AirBnB apartment located in High Street, Windsor. You were 23 years of age, born in July 1995.
3 On 7 February 2019 the victim of your offending, Ms Georgia Winters[1], went out for the night with some of her housemates to a bar in the city called Ms Collins. I note here in accordance with protocol that when this sentence is published Ms Winter's name will be anonymised to protect her privacy. Ms Winter had earlier consumed two gin and tonics and her evidence was that she did not have anything further to drink at the bar. You were at Ms Collins with your friends Mushari Alotebi, Mohammed Al-Ghamdi and your younger brother Awadh Alanazi.
[1] A Pseudonym.
4 There was some dispute as to the precise circumstances of your interactions with Ms Winter that night. What appears to be clear is that some of Ms Winter’s housemates left the bar and she then met you and your friends outside in the smoking area. Ms Winter ended up accompanying Mr Alotebi to the 7‑Eleven to get cigarettes and then spent time talking with him outside. You and your friends joined them for a period. Ultimately Mr Alotebi asked for the keys to your apartment as Ms Winter had agreed to go home with him.
5 At approximately 1:14 AM the two of them arrived at your apartment. Soon after you and the others returned to the apartment, but you ended up leaving again. It seems that you had some interaction with Mr Alotebi at this time, but you did not see Ms Winter at all as she was in the bedroom. Mr Alotebi and Ms Winter had consensual sex and at around 3:00 AM, Ms Winter fell asleep naked in bed. At approximately 6:55 AM Mr Alotebi left the apartment to get breakfast leaving Ms Winter in bed.
6 On Ms Winter’s evidence the next thing that occurred is she woke up lying in the bed on her stomach. She was lying face down with you penetrating her vagina with your penis. She thought “what is happening?” and snapped her head around and saw you. She asked you, “what are you doing?” and you replied along the lines of, “what, what, you don't want this?” and she replied, ”no”. You also said words to the effect of, “are you okay? What's wrong?”
7 At this point you desisted and there was no further physical contact between the two of you. Ms Winter went straight to the bathroom to recollect herself and calm herself down. She then gathered her belongings and left. She returned to her home and was visibly distressed. She told her housemates what had happened, and they tried to offer her some comfort. Later that night she spoke to her mother who encouraged her to contact the police. The next day she attended the Royal Women's Hospital and participated in a forensic examination. She also spoke to the police and made a formal disclosure.
8 On 13 March 2019 you attended at the Moorabbin Police Station by arrangement. You made a no comment record of interview. You were initially remanded in custody. On 5 April 2019 you were granted bail and released from custody.
Gravity of the offending
9 In formulating an appropriate sentence to be imposed, Mr Alanazi, I must have regard to the gravity of your offending. On your behalf it was sensibly conceded that by its verdict the jury must have accepted Ms Winter’s account that she was asleep when the penetration commenced. Further, the jury accepted that you had no reasonable belief that she was consenting and necessarily rejected your evidence as to the circumstances of what took place.
10 Rape is an inherently serious offence as indicated by the maximum penalty of 25 years' imprisonment fixed by Parliament. Here you took advantage of Ms Winter while she was vulnerable. She was asleep and naked in a strange environment.
11 As conceded by your counsel, the offending is serious, and I regard your moral culpability as high. I accept that your offending is further aggravated by the fact, as I find on the evidence, that you were not wearing a condom at the time, thus potentially exposing Ms Winter to the risk of a sexually transmitted disease. Based on the DNA statements of Kate Utridge dated 24 June 2019 and 19 November 2019, and for the reasons advanced on your behalf by Mr Taaffe, I am unable to conclude to the requisite standard that ejaculation occurred.
12 Your offending may be described as opportunistic. It also does not have some of the hallmarks or aggravating features that this type of offending often does. It was of short duration. You ceased your actions immediately upon Ms Winter pushing you away and it did not involve any violence or threat of violence. These comments, Mr Alanazi, are not intended to minimise the gravity of your offending or to suggest that rape is not an act of violence in itself whether or not accompanied by other violent conduct. It clearly is. However, in assessing the objective gravity of the offending, it is relevant, and I am required to consider a range of factors including, the nature and extent of your conduct, its duration and the circumstances in which your offending occurred.
Victim Impact
13 I received a victim impact statement from Ms Winter dated 1 February 2022 and it speaks of the profound impact that your actions have had on her. Your offending has left her feeling immense grief, pain and trauma, and has caused her to lose friendships and opportunities, and to develop massive trust issues and low self-esteem. Her feelings have evolved over time and initially she could not leave the house without having panic attacks and severe depression and heightened anxiety. The impact of your offending has been pervasive, impacting all aspects of her life, including her ability to maintain a job or attend university. She continues to struggle with motivation, trust, insecurities and confidence issues. She says:
I have ambitions and a life I desperately want to curate for myself, but am constantly in an internal battle to do the things I want to do.
14 Her natural inclinations and work as an artist predisposes her to be social and interactive with others, but your crime against her causes her massive conflict and has created what she refers to as a 'strong wall'. In her victim impact statement Ms Winter also shared a painting of hers depicting imagery of her own visualisation of the grief and pain she was going through not long after the rape. The painting is both poignant and powerful in its depiction. There can be no doubt, Mr Alanazi, that your offending has had a significant impact upon your victim and while this factor cannot overwhelm the sentencing process, I take this matter into account in sentencing you.
Personal circumstances
15 Your personal circumstances were canvassed in detail at your plea hearing. You are now 26 years of age. As I have already mentioned you were 23 at the time of the offending. You were born in Saudi Arabia. Your father is a retired military officer, and your mother is a doctor. You have two younger brothers, both of whom are students. As already noted, one of your brothers was in Australia for a period but has since returned home. All your family live in Saudi Arabia.
16 You grew up in the city of Riyadh in a loving and stable family environment. As the eldest child you were given a level of responsibility beyond what was expected of your younger brothers, and it fell to you to set a good example for them. I was told that your parents rewarded good behaviour and incentivised you to work hard and take responsibility.
17 You were schooled in Saudi Arabia. You developed an interest in computers from a young age. When you were approximately 14 years old your father purchased the first computer for the household which you accidently damaged and he refused to purchase another. From that age you worked part-time after school in a sporting store, and you managed to save to purchase your own laptop. Through your part-time work you also made contributions to the family finances. Your interest in computers continued and was focused on websites such as Google, chat functions and on the overall functionality of computers. This curiosity of yours led you to tertiary studies in cyber security.
18 You graduated from high school in Saudi Arabia with very good academic scores. You decided to apply for a scholarship to travel to Canada. You had a cousin with very good English, and he advised that Canada was a good option given its multiculturalism and good schools. Your grades secured you the scholarship. At the age of 18 you travelled to Canada on your own and began studying English there. In part, you were motivated to travel abroad because you considered Saudi Arabia was too strict and you were expected to follow the traditional path of school, military and then marriage. You were curious and motivated to explore the broader world and other cultures and to learn more about computers.
19 In Canada you first studied English, and you spent approximately 15 months to improve your English to a tertiary level. You met an Egyptian student and obtained part-time work renovating homes and moving furniture. Earning good money, you took a break from school and worked full‑time moving furniture. You also commenced a relationship with a Brazilian student whom you had met. At around 21 years of age, you injured your hand when moving a coffee table and this prevented you from continuing such work. You decided to return to your studies and enrolled in a cyber security course. Initially you found the transition back to school challenging, but it did not take you long to start performing well again in your studies.
20 You then faced a sudden and unexpected situation that required you to leave Canada. I was told that as a result of developments between the Canadian and Saudi Arabian Government that all students on scholarships were given 15 days' notice that they had to transfer courses elsewhere and leave Canada. You selected Deakin University because of the quality of the course. You sold your belongings and suddenly left your life and girlfriend behind in Canada and came to Australia.
21 In the last month before you left, your girlfriend had fallen pregnant with your child. She ended up returning to Brazil and had the child. I am told that while you have not met your son in person you have had frequent online contact with him. You have also been keen to play a role in his life and have sent money to help support him.
22 You therefore moved to Australia to continue your studies. Before your classes commenced you were going out with your brother and your friends, and the offending occurred within this general period of time.
23 You were arrested on 13 March 2019 when school had just commenced. As already noted, you spent 23 days in custody during which you missed some weeks of your classes. Upon your release on bail, you were sleeping some four hours a day and otherwise dedicating all your time to try to catch up with your studies.
24 You completed your degree and classes finished in July 2021 and you formally graduated in October. You graduated in a Bachelor of Cyber Security with high distinctions and also obtained additional qualifications beyond your Bachelors degree. You obtained a certification in Ethical Hacking and in Computer Hacking Forensic Investigations which apparently will further assist in securing government or industry employment in online cyber security. You have applied yourself diligently to your studies throughout your life and have been rewarded with considerable achievements.
25 Throughout your studies you were also variously employed with the university, working in cyber security and developing websites and other work of that kind requiring technical speciality. As part of your employment, I was told that you and other students developed a website for the Council of Whittlesea to build an infrastructure to assist in receiving donations and registering them as charitable.
26 You have always planned to return to Saudi Arabia to be reunited with your family and to commence employment there. In your case, mandatory cancellation provisions in the Migration Act will likely be triggered and so it will be expected that you will be deported to Saudi Arabia. Given your circumstances, the effect or consequences of possible deportation as a mitigating factor were not relied upon on your behalf.
Factors in mitigation
27 A number of important factors were advanced on your behalf in mitigation as follows:
Previous good character
28 You have no prior criminal history and no subsequent matters. It was submitted on your behalf that your offending constitutes an aberration in an otherwise blameless life.
29 The court received a reference from your partner, Ashwaya, of 31 January 2022. She has known you for approximately three years and lived with you for most of this period. She has supported you throughout the court case. She describes you as gentle, loving, responsible and respectful. She speaks of your high academic achievements and of the praise you have received at work. She herself has observed you to be kind, patient and determined. She describes you as a decent person at the core and of “good moral character”.
30 I accept, Mr Alanazi, that you have these attributes and qualities, but I note that they are completely at odds with your offending and with the complete disregard you showed for Ms Winter’s dignity and welfare. I am, however, satisfied on the evidence before me that you are a person who has otherwise been of good character and I take this matter into account in sentencing you.
Youth
31 You are currently 26 years of age and, as I have already noted, were 23 at the time of your offending. I regard this as a particularly important consideration in sentencing you. Rehabilitation of young offenders is one of the great objectives of the criminal law. It also benefits the community as the effective rehabilitation of a young or youthful offender in the long-term protects the community from further offending. The court recognises the potential for young offenders to be redeemed and rehabilitated[2]. I accept that, given your age, rehabilitation should assume a more prominent role in the sentence to be imposed. In addition, I am cognisant that the effect of incarceration in an adult prison on a young or youthful offender will more likely impair rather than improve prospects of rehabilitation.
Time in custody
[2]R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
32 Your counsel also made the submission that custody has been and will continue to be more onerous because of the COVID-19 related restrictions. As a result of the impact of COVID-19, and measures taken by Corrections, you are experiencing additional stress and concern about your wellbeing, and additional isolation and restrictions within prison. At the time of the plea, you were still in the initial isolation period and could only appear in court by audio means. Sentencing you was also briefly delayed for this reason.
33 You have only had very limited time outside your cell during your period on remand. The prison environment continues to be strictly controlled because of COVID-19 and I accept that this represents an additional burden.
34 I also accept as an additional hardship advanced on your behalf that prison will be more isolating and difficult for you as an overseas student in Australia with a smaller network of friends and no family available here to visit and support you.
35 Further, I take into account the that sentence I am about to impose, along with your remand periods associated with this matter, represents your first experience of custody.
Delay
36 There has been a delay in your case. Your trial was first listed in September 2020 and could not proceed. It was again listed in October 2021 and could not proceed. The trial ultimately took place in January of 2022.
37 The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Every case is different, and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstances[3].
[3]Arthars v The Queen [2004] VSCA 222; Plater v The Queen [2013] VSCA 258 at [25]-[29]; R v Merrett, Piggot and Ferrari [2007] VSCA 1 at [35].
38 Taking all of the circumstances into account here I consider that delay is an important factor in your case. I take into account the stress and uncertainty you have experienced during this period. I also consider that the delay here is important when considering and assessing your rehabilitation and what you have achieved in this time. You have demonstrated motivation during this time, managing to complete and do very well in your studies, and to obtain work in your field.
Prospects of rehabilitation
39 I accept your counsel's submission that you have strong future prospects of rehabilitation. As I have already noted you do not have a prior criminal history. There has been no further offending and you have complied with the various conditions of bail. You have a strong educational history and work ethic. You are capable of being responsible as you have demonstrated in your own family and also in the efforts you have made in maintaining a relationship with your son and providing him with some support. You have managed to successfully complete your studies and work and you have maintained a respectful and caring relationship with your partner. You have the continued support of your family and friends.
40 Of course, you pursued this matter to trial which means that you do not obtain the mitigatory benefit of a plea of guilty in these proceedings.
Sentencing principles
41 The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The community expects that the courts will unequivocally denounce and punish conduct of this kind and send a clear message that it will not be tolerated.
42 Given your relative youth, as I have already indicated, I accept that rehabilitation should assume a more prominent role in the sentence I am to impose. General deterrence, however, still remains an important sentencing consideration. I also accept, given your previous good character and my assessment of your rehabilitative prospects, that specific deterrence has limited application to you.
43 I take into account the sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case. It is clear that the impact of your crime on Ms Winter has been significant. This and other relevant considerations must be balanced with matters in your favour, particularly your age, positive rehabilitation prospects and previous good character.
44 The only appropriate sentence in this case is one of immediate imprisonment for a substantial period. I recognise that the deprivation of liberty and personal autonomy for a period of years is a severe sanction for a first-time offender, particularly in the context of the pandemic which has caused conditions in prison to be unusually harsh.
45 As earlier noted, the standard sentencing regime applies to your case and the standard sentence for rape is 10 years' imprisonment. The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.
46 In considering the impact of standard sentencing on your case I have considered the decision of Brown v The Queen[4]. In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing[5]. This requirement therefore is to be treated as a ‘legislative guidepost’ having the same function as the maximum penalty. It does not allow the standard sentence to be viewed as a starting point, does not affect the established instinctive synthesis approach to sentencing, does not require or permit two-stage sentencing and does not otherwise affect the matters which I may, or must, take into account in sentencing. Accordingly, I have taken the standard sentence for rape into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors in your case.
[4] [2019] VSCA 286.
[5] See also Sentencing Act 1991, s.5B(2)(a)
47 Pursuant to section 5B(2)(b) of the Sentencing Act in relation to a standard sentence offence I can only pay regard to sentences previously imposed where rape was the subject of the standard sentence scheme. The defence in this case provided several cases of this court that deal generally with sleeping victims since the standard sentencing regime commenced operation[6]. I have considered all of those cases and have had regard to them. Many of the cases are factually different to yours and of course every single human situation is unique[7].
[6] DPP v Serkan Kala [2021] VCC 151; DPP v Kushan Palliyaguruge [2021] VCC 958; DPP v Hyeong-Beom Park [2021] VCC 2058; DPP v Clinton Elwood; Brody Perry [2019] VCC 128; DPP v Gerard Flancey (a pseudonym) [2021] VCC 1225
[7] See McPhee v The Queen [2014] VSCA 156.
48 The sentence I am about to impose in respect of your charge is lower than the standard sentence. I have considered all relevant factors in assessing your sentence, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation, and I have determined that the following sentence is appropriate.
Sentence
49 On the charge of rape you are convicted and sentenced to five years’ imprisonment.
50 In terms of setting the non-parole period I have taken account of all relevant matters and, in particular, the strong mitigatory factors in your case. As the charge is a standard sentence offence, I must fix a non-parole period of at least 60 per cent of the sentence I impose unless I consider that it is in the interests of justice not to do so. In your case, Mr Alanazi, I order that you serve a non-parole period of two years and 10 months' imprisonment. I note here that in all the relevant circumstances I am of the view that it is in the interests of justice to fix this non-parole period in your case.
51 Pursuant to section 18 of the Sentencing Act I declare you have served 41 days as presentence detention.
Sex Offenders Registration Act 2004
52 The prosecution made an application pursuant to section 11(6) of the Sex Offenders Registration Act 2004 (SORA) for an order that you be registered. The 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 the available material and the matters I have already canvassed, including your lack of criminal history, your compliance on bail and your good prospects of rehabilitation as I have found them to be, I am not satisfied to the requisite standard as to the existence of risk and as such I do not propose to make the order. Is there anything else?
53 MR FITZGERALD: No, Your Honour. If Your Honour pleases.
54 HER HONOUR: Mr Taaffe.
55 MR TAAFFE: No, Your Honour.
56 HER HONOUR: I'd like to thank the parties for their assistance in this matter and otherwise we'll adjourn the court.
57 MR TAAFFE: If Your Honour pleases.
58 MR FITZGERALD: If Your Honour pleases.
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