DPP v Nafady
[2018] VCC 721
•25 May 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-16-00416
CR-17-02177
CR-17-02181
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
ADEL NAFADY Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATES OF HEARING: Trial 1: 14 – 17, 20 – 22 November 2017
Trial 2: 28, 30 November, 1, 4 – 8 December 2017
Trial 3: 11 – 14, 18 – 19 December 2017
Trial 4: 12 – 16, 19 – 21 February 2018
Trial 5: 23, 26 – 28 February, 1, 2, 5, 6 March
2018
Trial 6: 8, 9, 13, 14 March 2018
Plea: 3, 17 May 2018
DATE OF SENTENCE: 25 May 2018
CASE MAY BE CITED AS: DPP v Nafady
MEDIUM NEUTRAL CITATION: [2018] VCC 721
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Rape x 4 – Three complainants – Jury verdicts – Relevance of immigration detention – Serious sex offender – Underwood (a pseudonym) v The Queen [2018] VSCA 87, applied – Crimes Act 1958 (Vic) s 38(1)
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APPEARANCES: Counsel Solicitors
For the Crown Mr P A Chadwick QC with Office of Public
Ms N C Burnett Prosecutions
For the Defendant Mr J R V Kelly SC with Emma Turnbull
Mr D Cronin Lawyers
HIS HONOUR:
Adel Nafady, you have been found guilty of four charges of rape concerning three complainants whom I shall refer to as AR, AF and KL. You were acquitted of other charges relating to complainant LX.
The individual trials followed a successful interlocutory appeal to the Court of Appeal after the prosecution originally presented you on an indictment alleging offences against six complainants. Your application for the indictment to be severed was refused by me. The Court of Appeal severed the indictment and ordered six separate trials, one for each complainant. The Crown only proceeded with indictments relating to four complainants.
Background
You have stood six trials all concerning allegations of rape. The first trial, in November 2017 concerned AR. You were acquitted of the first charge of rape on Indictment F11854231.2B (‘Indictment 2B’) and convicted on the second charge of rape. A jury in the second trial concerning AF on Indictment F11854231.2C (‘Indictment 2C’) was unable to agree on verdicts in December 2017. On the retrial (the third trial), the jury acquitted you on a charge of false imprisonment and convicted you on two charges of rape (one digital, one penile). In the fourth trial, in February 2018, a jury, by majority verdict, convicted you of a single charge of rape on Indictment F11854231.2F (‘Indictment 2F’) concerning KL. On the fifth trial in February and March 2018 concerning LX, the jury was unable to agree on verdicts. On the retrial (the sixth and final trial), you were acquitted of a charge of false imprisonment and five charges of rape. Nothing further needs to be said about that matter. The prosecution discontinued the charges pertaining to two other complainants at the conclusion of the sixth trial. These remarks, and your sentencing, relates only to the three complainants where you were found guilty, namely AR, AF and KL.
You therefore fall to be sentenced in accordance with the jury verdicts on four charges of rape concerning three complainants. The maximum penalty is 25 years’ imprisonment.[1]
[1] Crimes Act 1958 (Vic) s. 38(1) as in operation between 1 January 2008 and 30 June 2015.
The circumstances of the offending emerged during the course of the trials. A feature of each of the trials was the prosecution, over your Counsel’s objection, leading what is known as ‘counterintuitive’ evidence from Dr Danny Sullivan, forensic psychiatrist, to educate the juries that there is no typical or proper pattern of response to a sexual assault and that some complainant’s resisted while others ‘gave in’. Further, some complainants will also remain in contact with the perpetrator after the event and may not immediately report the matter.
You were born in Dubai on 18 June 1987 and arrived in Australia on a student visa on 28 February 2015. You were studying for a MBA at a private college in the Docklands. You moved into a one room apartment in ‘UniLodge’ accommodation in Windsor. All charges relate to events at that address.
You had created profiles on a number of dating applications, including ‘Plenty of Fish’ and ‘OKCupid’. You were unknown to any of the complainants until you connected with them online.
Complainant AR: Indictment 2B
AR was born in Egypt in 1985 and moved to Australia from New Zealand in 2012. She was 29 years old at the time of the offence and, therefore, just over one year older than you were. AR had created a profile on the dating application ‘Plenty of Fish’. You connected with AR on this application and communicated for several days with her, before continuing to communicate on ‘WhatsApp’. After communicating via text message for several days, AR invited you to have a drink at a bar in Windsor and then attend AR’s weekly Tuesday trivia night at a nearby tavern. On 21 April 2015, you attended the bar and the trivia night with AR, and sent her a message the following day reminding her of your plans to meet again on Friday, and hoped that you would be alone.
AR said that she had previously made plans with a work colleague, but agreed to meet you afterwards. As it transpired, you met with AR on Thursday at a café and you told AR about how much you liked her and how you thought that things would work out between you two. During this meeting, you tried to hold AR’s hand multiple times, and each time she would pull her hand away. You both then proceeded to go to a bar where you continued conversing with AR about how much you liked her and that how you wanted to have a relationship with her.
You both caught the same tram home to your respective residences, and whilst on the tram, you held AR’s hand. She felt uncomfortable, but did not want to make a scene so she let you continue to hold her hand.
On Friday 24 April 2015, you met with AR after she had finished socialising with her work colleague. AR said that you met between 9.30-10pm on the tram and went to a bar together. From the evidence of the text messages, it is clear that you met with AR shortly after 10pm. AR had been drinking with her colleague prior to meeting you, and said that she had about five alcoholic drinks – she wasn’t drunk, but happy. At the bar, you both had one alcoholic drink and after an hour, AR said that she was tired and wanted to go home. You wanted to continue the night and suggested that you get some alcohol and go back to your apartment. AR said that she had alcohol at her house and that she wanted to go to her house.
In the taxi on the way back to AR’s house, you suggested that you both go to your apartment as it would be more private and comfortable there – AR lived in a shared house. AR resisted this, but eventually agreed to go to your apartment as the taxi driver was getting irritated. AR went inside her house and retrieved a bottle of rum before the taxi dropped you both at your apartment.
Inside your apartment, you both continued drinking and smoking cigarettes. AR started to get tired and went to lay down on your bed where you both watched a TV show on your laptop. AR said that she was very tired and wanted to go home. You said to AR “just stay here. We can sleep here, we can just sleep, we don’t have to do anything”.
Shortly thereafter, you and AR began kissing. This was consensual. You touched her breasts and slid your hand up her dress, at which point she told you to slow down. You responded to AR by saying “[i]t’s nice, just relax, just go with it”. You continued to undress AR and undress yourself, moved on top of her and inserted your penis into AR’s vagina. At this point, AR was consenting.
A short time later, AR became aware of what was happening and withdrew her consent by telling you either to “stop” or “get off me” – she did so assertively. You did not withdraw your penis from her vagina at which point AR tried to push you off and verbally told you again to stop. The act of failing to withdraw your penis from AR’s vagina constituted the first charge of rape on Indictment 2B. You were acquitted of this charge.
Eventually you did withdraw from AR and she quickly got up and covered herself with the sheets or doona. AR asked you “what was that?”, and you responded by saying “I’m sorry, I didn’t realise. I think I’m drunk”. AR tried to get off the bed, but you pulled her back down. You were crying and apologetic for what you had done. AR wanted to leave and was trying to dress herself and you prevented her from getting dressed and asked her not to leave.
AR agreed to stay provided that she could go to sleep. AR turned and faced the wall on the single bed. You asked AR to turn and face you, and continued apologising. You then kissed AR again, and she kissed you back. You then touched and started kissing AR’s breasts and then moved on top of AR. At this point, AR said “stop, don’t, I don’t want to do this”. You did not stop, you moved further up and inserted your penis into AR’s vagina. She tried to push you off and yelled at you saying “get off me”. She tried to push you with all her force but you held her hands/wrists and used your body weight to pin her to the bed. As AR told you to stop, you said “just let me finish”.
AR repeatedly told you to stop, and used her legs to try and push you off her. Eventually you did stop penetrating AR, and she stood up. This constituted the second charge of rape on Indictment 2B for which the jury found you guilty.
You tried to grab her, but she pushed you away. You then pushed AR to the floor and said that she was overreacting. AR again tried to collect her clothes so she could get dressed and leave, and you said to AR again “you’re overreacting, nothing happened, nothing happened. Just don’t leave”. AR responded by saying that “I told you to stop and you didn’t stop”, and told you that she wanted to leave immediately. You told AR “I didn’t finish”. AR then told you that she would scream as loud as she could if you didn’t let her leave, at which point you let AR leave your apartment. It was shortly after 2am the following morning when AR left.
On 2 May 2015, you sent a text message to AR expecting her to apologise to you. AR told you that it was the worst night of her life and that she did not feel safe around you anymore, and did not want to talk to you. You said that what happened between you two was a “misunderstanding”, and that you promised to make it up to her in the future.
On 2 June 2015, as a result of examining your phone, police made contact with AR and took a statement from her. This was the first time AR had complained to police. There was no record of interview conducted with respect to AR, and you did not give or call evidence at the trial.
Victim Impact
AR made a victim impact statement. AR spoke of the anxiety and depression these events caused her to suffer. As a result of the anxiety and depression, AR has had issues with her work, family, ability to trust a new potential partner and has increased to a point where she is not able to function in ordinary day-to-day activities.
She notes that as a result of her mental condition, she has had to have therapy, take medication and has been forced to stop work and is not in a position to know when she will be able to resume working. She was working in a professional services firm. She described how difficult the court process was for her, and details her problems your offending has had on her ability to sustain a relationship.
It is clear that your offending has had a substantial impact on AR. The fact that she now suffers from a mental condition such that she is not able to work, trust others, and in particular, men, and has issues with her family, aggravates the seriousness of your offending.
Assessment of the seriousness of offending
You are to be given the full benefit of your acquittal in relation to charge 1 on Indictment 2B. The jury, by its verdict, must not have been satisfied beyond reasonable doubt that AR did not consent to the continued sexual penetration, or that you were aware that AR was not consenting or might not be consenting to the continued sexual penetration.
You fall to be sentenced for sexually penetrating AR a second time after she said “stop, I don’t want to do this” and you held her hands/wrists to prevent her moving, and used your body to pin her to the bed as she verbally and physically attempted to resist you.
Giving you the benefit of the acquittal on charge one, you still carry a high degree of culpability for this offence. While in the previous days there had been dating activity, I am satisfied that you were well aware that the complainant had drawn a line after she “snapped”. On the complainant’s account, which the jury must have accepted beyond reasonable doubt in relation to the second charge, AR was making it very clear that she did not consent to further intercourse with you. Her lack of consent was also evidenced, albeit after the event, in text messages the two of you exchanged in the following days. You just ignored her. I reject the submission that this was a case where you were just not giving the issue of consent any thought. This was not a case of passion overcoming reason. Your offending is also aggravated by the fact that you engaged in unprotected sex. This applies even though you were acquitted of the first count.
Complainant AF: Indictment 2C
The second complainant, AF, was born in Colombia in 1978 and arrived in Australia on a working visa in August 2014. She was aged 36 at the time of the offences and spoke limited English. AR was 9 years older than you were. She had a university degree from her home country and came to Australia to advance her career. She had arrived in Australia about 9 months prior to this incident. AF had created a profile on OKCupid to meet people to improve her English. On 6 May 2015, you started communicating with each other. You offered to help AF find a job as you had a friend who owned a restaurant but said that you needed to review her résumé, and suggested to meet that night after AF finished work for the day. You offered for her to come to your apartment and then take her home. AF agreed to meet you shortly after 10pm at the tram station.
You met with AF at the tram stop on St Kilda road and walked to your apartment in Windsor. Upon arriving, due to AF’s limited ability to speak English, you used a Google translator on your mobile phone to translate from English to Spanish. You smoked cigarettes and drank Coke Cola and repeatedly asked AF to be your girlfriend and whether she liked you.
AF began to feel increasingly unsafe and asked to use your bathroom. She did so, and when she returned, you tried to hug and kiss her. AF refused to let you kiss her, but allowed you to hug her. She did not understand what you were doing as she was there in your apartment so that you could assist her in finding another job. You then asked AF, via the Google translator, to stay at your apartment for the night. AF told you that she had class tomorrow and that she wanted to go home.
AF tried to distract you by asking for some moisturiser she had earlier seen in the bathroom, and you provided her with some. AF then stood up and tried to run towards the door, at which point you threw AF onto the bed, and at the same time, removed her sweater and t-shirt. AF then said that she needed to go to the toilet, but instead made a second attempt to run for the door. You made it to the door first and stood between the door and AF, and said “you cannot leave naked”. You then pushed AF back onto the bed and moved on top of her and pinned her down. This constituted charge 1 of false imprisonment on Indictment 2C for which you were acquitted.
As you pinned AF to the bed, with what she described with all your weight, she tried to scream. As she did, you grabbed her throat and started to choke her, until the stage that she could not breathe anymore. At this point, although trying to distract you further, AF lost the strength to fight you and gave in. You then removed AF’s pants, leggings and underwear. At this point, AF knew that you were going to rape her. She begged you to use a condom. You then inserted your fingers into her vagina for a short period, retrieved a condom and then introduced your penis into her vagina. AF had lost the strength to fight you, and did not say or do anything at this time to suggest to you that she was in anyway consenting. This constitutes charges 2 and 3 of rape on Indictment 2C, being digital and penile rape, for which you were found guilty on both counts.
After you removed your penis from her vagina, AF immediately got off the bed, got dressed and left your apartment. She did not make a complaint to police.
Communications adduced between you and AF later that night and in the days subsequent painted somewhat of a different picture of how the events transpired in your apartment earlier that night. AF said she would be willing to be your girlfriend, called you her “bf”, told you that she liked the sex with you, that she missed you and wanted to live with you. AF’s explanation for this was that she wanted to keep you hooked in order to get revenge on you, and this was the only way for her to keep you hooked. There was a ring of truth to this evidence given her limited command of English and her recent arrival in the country.
She gave evidence that she complained about the incident to a friend by Skype in Spain, and also showed him a small bruise on her chest. This person was not prepared to give evidence in support of the complainant.
Again, police made contact with AF after examining your mobile phone and met with her on 3 June 2015 where she disclosed the offending, and a formal statement was completed in the days following. AF had not made a complaint to police prior to police making contact with her. There was no record of interview conducted in relation to AF, and on the retrial where you were convicted of the rape charges, you did not give or call evidence.
Your defence at the trial was consent and your counsel strongly challenged the account of the complainant.
Victim impact
AF read aloud her victim impact statement to the Court with the assistance of an interpreter. She described how she came to this country from Colombia feeling vulnerable but looking for the chance to work and learn the English language. She stated, as became evident in the trial, that she met you because of your offer of assistance to find a job.
Since the offence, she now feels incapable of making decisions and feels dirty. She felt like she was going to die that night. The breach of trust you perpetrated has caused her to make slow progress learning the English language, because of her lack of concentration, stress and trauma caused by this rape. She feels as though she cannot trust anyone, and that justice was not going to be done.
During what she described as an inquiry (being the court proceedings), she felt intimidated and demeaned as her motives for making these allegations were questioned. She found the trial process difficult. She has suffered interrupted sleep, insomnia, fear, distrust, delusion of persecution and feels as though she has been devalued as a woman leading to the fast deterioration of her personal relationships. She also noted a lack of proper assistance to victims of sexual assault.
Her victim impact statement not surprisingly indicates that your offending has had a substantial impact on her. Her dream to migrate and settle in this country has been significantly set back by your conduct.
Assessment of the seriousness of offending
Giving you the benefit of the acquittal on the false imprisonment charge, this was rape involving violence over and above the violence associated with forced penetration, in circumstances where the complainant had made it crystal clear to you that she was not consenting. She begged you to use a condom. That exchange shows a high degree of culpability on your part even though it removes an aggravating consideration. The complainant was overall in a somewhat vulnerable position, being new to the country and in that she had sought your assistance to check her résumé. You exploited her trust once you got her into your apartment. I am satisfied beyond reasonable doubt that in the course of resisting you she sustained a minor bruise on her chest. You bear a high degree of culpability for these charges.
The serious impact on the complainant as testified in her victim impact statement adds to the seriousness of these two charges.
Complainant KL: Indictment 2F
KL was born in Hong Kong in November 1984. She was aged 30 at the time of the offence, and as such, just over 2 years older than you were. She had previously lived in Australia for a six-month period a year before the offence. KL had created a profile on OKCupid, and on 16 April 2015, whilst KL was still living in Hong Kong, you made contact with her. KL was soon to move to Melbourne.
After exchanging mobile phone numbers, you communicated with KL via WhatsApp, and offered for KL to stay at your apartment upon her arrival in Melbourne until she found a job and place of her own. Prior to her arrival, the text messages exchanged between you and KL show that she was reluctant to commit to staying at your apartment as she didn’t know you and wanted to be friends first. You attempted to reassure her by saying “we will be staying together for a few weeks until I get you a job and find a place for you”. Once KL asked to get to know you more before committing to stay at your apartment, you said this was upsetting you and again told her that she will be staying at your apartment until you could find her a suitable place. You assured her that you would protect her.
Like with AF, you told KL that you had a friend who owned a café and that you would be able to get her a job there. In the meantime, KL was to stay with you for “a month at least”.
KL arrived in Australia in the morning on 20 May 2015 and you met her at the tram stop on St Kilda Road. You walked together to your apartment and offered to sleep on the floor as your apartment was not a two-bedroom apartment as you had previously told her. During the course of the afternoon, you had consensual intercourse with KL. You also had a shower together, but KL could not remember if you had intercourse in the shower. After you had intercourse, KL told you that she was in love with someone else, and that she needed some time and space to think about what she really wanted. You appeared to be unhappy with this.
That night, you went with KL out for dinner with two of her friends and returned to your apartment together, where you slept on the floor and KL in the bed. The following morning, 21 May 2015, KL woke and you got onto the bed. KL was dressed at this stage in a t-shirt and pants. You talked on the bed about what had happened the previous afternoon, and she again told you that she wanted some time to think. You then touched her breast. She told you to stop, and pushed your hand away. Again KL told you that she needed some time to think through what she wanted, and that she didn’t want to have sex with you whilst she was unsure in her mind. You responded by stating “only once, just once”, to which she said “no”.
You then took off KL’s pants forcefully as she tried to cover herself. She was verbally and physically resisting your advances. You then grabbed hold of KL’s hands to prevent her from moving, and used your legs to pin her to the bed. KL could not move. You inserted your penis into her vagina as she said to you, quite loudly, that she did not want to have sex with you. You then bit her lip, at which point she became scared and tried, without success, to push you off her. This constitutes the single charge of rape on Indictment 2F on which you were found guilty.
After approximately 10 minutes of penetrating her, you withdrew your penis and ejaculated onto the floor. KL again told you that she was not happy, and that she didn’t like the force you used against her, and forcing her to do things she doesn’t like.
Later that night, police arrived at your apartment to execute a search warrant, based on the other complaints they had received. KL answered the door and later disclosed your offending to the informant.
A record of interview was conducted in relation to KL where you denied that you had raped her, and that anything that had occurred was “totally nice” and “just between two friends”. You suggested that the police convinced KL to make an allegation of rape against you. You did not give evidence on the trial.
The jury must be taken to have rejected your account beyond reasonable doubt.
Victim impact
KL made a victim impact statement. KL thanked police and prosecutors for their help and support of a girl from overseas. She describes how, after just two days in Australia, her life completely changed. For a period she felt insulted, frustrated and betrayed, and it took a few months to recover her feelings. The repeated appearances before the courts prevented her from healing in what she described as having a scar, and someone peeling it off again and again.
KL described her Christianity as a reason for being so positive. She is glad the process has come to a conclusion and that she can now move forward. Like AR, your offending has had an impact on KL.
Assessment of the seriousness of offending
Notwithstanding that there had been prior consensual sex between the two of you on the day before, the complainant had made it clear to you that she did not consent the next day. She gave you a reason which you did not accept.
Despite this, you forcibly removed her clothes, restrained her and had unprotected sex with her. The force resulted in a slight bruise to her lip, in addition to the pain and suffering. I do not accept that you caused the mark on her leg that was presented in evidence.
Like in the case of the other two complainants, you were just not prepared to respect the complainants’ personal autonomy. You bear a high degree of culpability for this offence.
Personal circumstances
As I have indicated, you were born in 1987 in Dubai. You completed your schooling in Dubai and then relocated to Egypt with your mother, father and younger brother. You have worked for an oil company in Dubai and for BMW in Egypt. You have also worked in your father’s business. You have lived in Canada and the United Kingdom, and relocated to Melbourne in 2015 to pursue a Masters of Business Administration.
On the plea, your counsel tendered a report by Dr Aaron Cunningham, psychologist. Dr Cunningham indicates that you have a good relationship with both of your parents. Your father is suffering from cancer and his condition worsened throughout the course of the trials. Whilst his condition has now stabilised, this has undoubtedly caused you anxiety being separated from him and the rest of your family.
Your counsel emphasised that you have no prior convictions.
Shortly after you were arrested for a second time[2] in early June 2015 and remanded in custody, your visa was cancelled. You were subsequently bailed by the Magistrates’ Court on 1 October 2015 on the condition that you be in the custody of the Department of Immigration. You spent 784 days in Immigration Detention before your bail was revoked and you were remanded in custody on 23 November 2017, after the returned a verdict of guilty on the first trial. You have been in custody since.
[2] You were arrested and released for a first time on 17 May 2015 after a complaint was made by LX.
Whilst in Immigration Detention, you spent approximately six months on Christmas Island and the remainder of that period at the Maribyrnong Detention Centre. You have also spent time at the Melbourne Remand Centre (‘MRC’).
You were present during the riots at MRC in 2015, and also riots that occurred on Christmas Island in 2015. You have spent a considerable portion of your current remand as a protection prisoner, where for considerable periods, including up to 23 hours per day, you are in lockdown. As a remand prisoner, you have not had the opportunity to participate in a full range of programs.
The prosecution tendered an affidavit setting out your movements within the prison system. You have spent considerable time in protection that would have made imprisonment more burdensome, and I have given this some weight.
Dr Cunningham opined that you do not present with a mental illness. He does, however, opine that the time you have spent, and will spend in custody, will be made more difficult in light of the separation from your family and father’s medical condition.
I have taken these matters into account, including your conditions in immigration detention. You have no ties to this country and will be deported at the completion of your sentence. This is a matter that I take into account in your favour to some extent.
The prosecution accepted that your isolation from your family is a matter that is to be taken into account as making prison more burdensome, and I do so.
Prospects of rehabilitation
There was little evidence on the plea as to your prospects of rehabilitation. You are a first offender now aged 31 with tertiary qualifications. You have denied the offending by your pleas of not guilty, and there is no evidence of remorse.
Your prospects of rehabilitation must be regarded as uncertain, although I note you have the support of your family and remain in contact with them, and wish to return to Egypt to assist in your father’s business.
I have decided to fix a period after which you will be eligible for parole.
Sentencing submissions
Both parties filed comprehensive written submissions in response to directions I gave at the conclusion of the final trial.
I have already referred to the seriousness of each of the offences.
In sentencing you I am required to have regard to, amongst other things, current sentencing practices.[3] The prosecution did not bring any specific cases to the attention of the Court, noting that the offence of rape is committed in a wide variety of circumstances giving rise to a wide range of sentences, but emphasising that this was serious offending, both when considered against the individual complainants or as offending over a period of a month.
[3] Sentencing Act 1991 (Vic) s. 5(2).
Your counsel submitted that each offence should be considered as being in the ‘mid-range’ of seriousness, particularly given the lack of aggravating features sometimes found, such as the use of weapons, excessive force, and unacquainted parties.
Overall I regard the offences involving the second and third complainants (AF and KL) as more serious and as at least above the middle range of offending.
In identifying cases that may be of assistance, it is important to identify cases that contain broadly similar features, as well as those that are dissimilar. I was referred to the case of Bakshi v R[4] where, after a trial, the accused was sentenced to five and half years’ imprisonment with a non-parole period of three years. The complainant was affected by alcohol. The accused was sentenced on the basis that he believed that the complainant was consenting but his belief was not reasonable in the circumstances. The Court of Appeal indicated that the learned sentencing judge gave the accused the benefit of the doubt on this point and the sentence would have been higher had he not been sentenced on the lesser basis of culpability.[5]
[4] [2018] VSCA 83.
[5] Ibid [124].
Your counsel also referred to the case of Singh v R[6] where the Court of Appeal reduced a sentence of seven years imprisonment to five and half years (after a trial) on the basis that the sentence was outside the range of current sentencing practices. In that case the complainant had been plied with alcohol by her employer and the accused then engaged in unprotected sex. The complainant was drifting in and out of consciousness. She also experienced significant psychological trauma as a result of the offending. There was a large age gap between the two parties.
[6] [2014] VSCA 250.
It was argued that the aggravating features in the case were relatively moderate, there was significant delay and the accused had suffered extra curial punishment. The accused also tended a number of character references in that case. He had ties in Australia.
That decision is of only limited relevance given that the High Court has recently indicated that current sentencing practices are only one factor to be taken into consideration in sentencing, and are not determinative, although they must be considered on the basis that consistency in sentencing is an important consideration.[7]
[7] Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 349 ALR 37; [2017] HCA 41.
A case that is dissimilar is the case of Bailey v DPP[8] where sentences of eight years imprisonment were imposed on a number of counts involving a recidivist offender who engaged in a spate of predatory violent rapes of prostitutes.
[8] [2016] VSCA 160.
Your counsel also referred to the case of Underwood[9] where sentences of five years imprisonment on charges of rape after a trial were confirmed on appeal. That case is relevant to the issue of dealing with immigration detention. The offender was younger than you and the offences arose out of a single course of conduct. Given the period of immigration detention, the effective head sentence was seven years.
[9] Underwood (A Pseudonym) v The Queen [2018] VSCA 87 (Priest and McLeish JJA) (‘Underwood’).
I was also referred to the recent case of Shrestha v R[10] where the Court of Appeal has stated that sentencing practices for digital rape ought to rise for offences comparable to the case considered. That case involved a violent digital rape involving unacquainted parties where, on appeal against a sentence of six years’ imprisonment, the sentence was described as “lenient”.
[10] [2017] VSCA 364.
Delay
It is now three years since the offending and you have been in immigration detention or remand since 30 May 2015. The delay has meant that you have had the charges hanging over your head for that period, and while the period might be slightly longer than usual within the criminal justice system, the delay has not been excessive.
Consistent with Underwood, I have taken the delay into account in your favour in sentencing you.
Purposes of sentencing
The basic purposes for which a court may impose a sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.
I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
Overall seriousness
The individual criminality involved in each of the rapes, and considered overall, is serious offending. While I accept that there was no premeditation, there was some additional violence involved in each of the offences, and I have found in each case that you were well aware that each complainant was not consenting, yet you went ahead for your own gratification.
Your conduct calls for condemnation. You have shown no remorse or insight, and as such, specific deterrence is a sentencing consideration. Your conduct also calls for vindication of the impact on the individual complainants, as poignantly set out in the victim impact statements.
This was serious offending on three separate occasions over a period of approximately four weeks. You have shown no remorse and have maintained through your defence that each of the complainants are not to be believed. Not surprisingly, it has impacted them.
You have exploited three trusting women for your own sexual gratification. Each of them sought to build their lives in this country and your criminal conduct has stalled their progress and inflicted significant psychological damage on them. Your conduct, considered separately, or overall, must be utterly condemned.
In sentencing you, considerations of general deterrence also loom large with large numbers of people in our community utilising various dating sites and applications. A signal has to be sent to those who through the use of such sites to arrange to meet females that mere participation on such sites does not mean that they have therefore consented to all or any sexual activity. Whenever males meet females, women always retain the right to decline sexual activity and that must be respected. Your conduct is an opportunity for a signal to be sent to reinforce that fundamental societal value.
Serious sexual offender provisions
You are to be sentenced as a serious sex offender on charges 3 and 4 of this sentence (the second charge of rape in relation to AF and the single charge relating to KL). Section 6D of the Sentencing Act 1991 requires that the protection of the community be the paramount sentencing consideration, and that there is a presumption of cumulation with respect to these charges (Sentencing Act 1991 s. 6E). The prosecution did not seek a disproportionate sentence.
In approaching the serious sexual offender provisions, I have had regard to the fact that charges 2 and 3 against AF arise out of a single transaction and even though they constitute separate rapes, a high level of concurrency is appropriate.
In relation to cumulation of sentence for each complainant, the cumulation must recognise that there are individual complainants, subject to overall considerations of totality, although this is to be tempered in the case of the serious sexual offender charges.
Immigration detention
On the plea, the learned Crown prosecutor submitted that, in light of Underwood, the time you spent in immigration detention is to be taken into account “in a broad and practical way”[11]. Your counsel agreed that this was the appropriate course.
[11] Underwood [37].
I propose to give effect to the 784 days you spent in immigration detention consistent with the approach taken in Underwood by the making lesser cumulation orders than would otherwise apply, thereby resulting in a lower total effective sentence and non-parole period that would otherwise be ordered. I state expressly that had you not been detained in immigration detention, your total effective sentence would have been two years and two months longer than the total effective sentence I am about to impose.
Notwithstanding that you are not a citizen nor entitled to reside in this country, I regard it as appropriate to fix a non-parole period.
Sentence
On charge 2 on Indictment 2B, relating to AR, you are sentenced to six years and six months imprisonment.
On charge 2 on Indictment 2C, relating to AF, you are sentenced to seven years’ imprisonment.
On charge 3 on Indictment 2C, relating to AF, you are sentenced to seven years and six months imprisonment. This is the base sentence.
On charge 1 on Indictment 2F, relating to KL, you are sentenced to seven years and six months imprisonment.
I direct that 16 months of the sentence on charge 2 on Indictment 2B, 6 months of the sentence on charge 2 on Indictment 2C, and 3 years of the sentence on charge 1 on Indictment 2F be served cumulatively upon each other and upon the base sentence.
The total effective sentence is, therefore, 12 years and 4 months.
I direct that you serve a minimum of 7 and a half years before becoming eligible for parole.
I declare 317 days of pre-sentence detention to be reckoned as time served under this sentence.
I declare that you have been sentenced as a serious sex offender in relation to charge 3 on Indictment 2C and charge 1 on Indictment 2F and, pursuant to s. 6F of the Sentencing Act 1991, will enter this in the records of the Court.
I made the disposal order as sought by the prosecution.
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