Duale v The Queen
[2022] VSCA 80
•5 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0174
| YASIR DUALE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KENNEDY JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 5 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 80 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1746 (Judge Carmody) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Common law assaults – Assault with intent to commit a sexual offence – Sentence of 4 months’ imprisonment, with 2 months’ cumulation for each common law assault – Total effective sentence of 3 years and 10 months’ imprisonment with non-parole period of 2 years and 6 months – Whether sentences for common law assault manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Doogue and George Defence Lawyers |
| For the Respondent | Mr J B B Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
KENNEDY JA:
The applicant pleaded guilty in the County Court to two charges of common law assault, and a charge of assault with intent to commit a sexual offence. He also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
On 8 November 2021, the applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Common law assault
5 years
4 months
2 months
2
Common law assault
5 years
4 months
2 months
3
Assault with intent to commit a sexual offence
15 years
3 years 6 months
Base
Related Summary Offences
2
Commit indictable offence whilst on bail (contrary to s 30B of the Bail Act 1977)
3 months and/or 30 penalty units
1 month
None
Total effective sentence
3 years and 10 months
Non-parole period
2 years and 6 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
406 days
6AAA statement
6 years’ imprisonment, with a non-parole period of 4 years
Other orders
Disposal order
The applicant now seeks leave to appeal against sentence on the following proposed ground:
Ground 1: The individual sentences and orders for cumulation on charges 1 and 2 are manifestly excessive.
Circumstances of the offending
The applicant committed three separate offences in a six day period in December of 2019. At the time of the offending, the applicant was 24 years old and was on bail for unrelated offending and a community corrections order (‘CCO’).
The judge summarised the circumstances surrounding charge 1 as follows:
At about 10 pm on 7 December 2019, Sofia Lenehan was waiting at a tram stop near the Footscray railway station and scrolling through her phone with headphones on when you approached her. She was waiting at the tram stop to travel home after finishing work at a nearby restaurant. When you approached Ms Lenehan, you stood in front of her and held out your hand to shake her hand and when she went to shake your hand you grabbed her and pulled her hand towards your face to kiss it. You tried to do that on a couple of occasions and on both occasions Ms Lenehan pulled her hand away and told you not to do it.
You then offered Ms Lenehan a drink from a large Sprite bottle that you had been carrying and told her that it had a little bit of vodka in it. You sat down next to her and put your hand on her thigh and slid your hand up towards her groin. Ms Lenehan told you, in a loud voice, ‘No, fuck off, don’t do that.’ And slapped your hand away. You then told Ms Lenehan to chill out and put your hand on her shoulder and Ms Lenehan then ran towards Footscray railway station where she reported the incident to protective service officers.
You were captured on CCTV at the Footscray railway station, walking from the station toward the tram stop. The footage also captured Ms Lenehan running from the direction of the tram stop back towards the railway station.[1]
[1]DPP v Duale [2021] VCC 1746, [6]–[8] (‘Reasons’).
Charge 2 was summarised as follows:
At about 3 am on 8 December 2019, Tahlia Culley boarded a Sunbury line train at Flinders Street Station to travel home after she had been attending a Christmas work function. Prior to the train getting to St Albans you got onto the train in her carriage and sat opposite her. You had a can of alcohol in your hand and you were talking to yourself saying random things. Ms Culley thought that you were affected by alcohol.
When the train was around about the St Albans station you asked Ms Culley if she was okay and then you ran your hand up her leg from her shin to her knee. Ms Culley told you to, ‘Please do not touch me’ and you then started talking to yourself again. At that time there were about 10 other people in the carriage. A male seated about three rows away from Ms Culley made eye contact with her and asked if she was okay. She indicated that she was all right.
You then ran your hand up Ms Culley’s leg from her shin to her knee on two further occasions prior to getting off at Watergardens. After you got off the train, the male who had asked Ms Culley if she was okay told her that he in fact called the police. When she got to the Sunbury railway station she was approached by protective service officers and she reported the incident to them.[2]
[2]Ibid [9]–[11].
Charge 3 was an assault with intent to commit a sexual offence. The applicant conceded that it involved a ‘serious example’ of this offence. It took place on 13 December 2019 after the applicant met his victim (who was drinking with a group) at the Sunshine railway station and invited her to go back to his house in St Albans. The offending then occurred at St Albans railway station where the applicant tried to kiss his victim, and when she refused, punched her on multiple occasions to the head such that she ended up on the floor of the toilet cubicle. He also pulled off her pants and pulled down her underwear. Protective services then intervened after hearing the victim’s screams for help. The victim required medical treatment at hospital and suffered bruising and swelling, though no fractures.
The judge fully set out the circumstances surrounding charge 3 at paras 12–17 of his reasons. The sentence imposed in relation to charge 3 is not the subject of this appeal.
Applicant’s background
At the time of the offending, the applicant was 24 years of age. He was born in Somalia as one of six children. His father was killed during the civil war in Somalia and he was less than 10 years of age when his mother also died during childbirth. His eldest siblings have acted as parents to all the children.[3]
[3]Ibid [22]–[23].
The applicant’s family escaped from Somalia through Kenya and initially settled in Uganda. The applicant later moved with his family to Australia in 2010. He initially enrolled in Year 10 at Braybrook school, however found formal education difficult due to his limited English and lack of formal secondary education prior to coming to Australia.[4]
[4]Ibid [23]–[24].
After some difficulties with cannabis use, the applicant worked in a factory in Laverton, before moving to Shepparton to assist his aunty in the conduct of her childcare business. The applicant then obtained full-time work in Tamworth and later also Junee, and Kyneton, as a meat worker.[5]
[5]Ibid [25]–[27].
In 2018, the applicant became unemployed, after his co-worker resigned his position and stopped driving him to work. The applicant resumed heavy drinking (which he had initially commenced whilst working in regional New South Wales) and lost his Centrelink payments. As described by the judge, a ‘spiral of no benefits, homelessness and alcohol intake was commenced in earnest’.[6]
[6]Ibid [28].
In terms of relevant criminal history, on 10 October 2019, the applicant was placed on a without conviction CCO for a period of six months with 50 hours unpaid work on charges of failing to answer bail, theft from a shop, retention of stolen goods and commit an indictable offence on bail. The December 2019 offences amount to a breach of that CCO. In December 2012 he was placed on a $500 good behaviour bond for a period of one year at the Sunshine Children’s Court in respect of a charge of robbery.[7]
[7]Ibid [3].
Since being placed on remand for these offences, the applicant had also served a seven month sentence for other offences involving violence committed against his partner.[8]
[8]Ibid [29].
Sentencing remarks
The judge considered that he needed to have regard to the seriousness of the offending, the applicant’s culpability, and the applicant’s personal circumstances.[9] He needed to balance the interests of the community in denouncing the applicant’s criminal conduct, with the interests of the community in seeking to ensure that the offender was rehabilitated and reintegrated into society.[10] He also noted the requirement to take into account current sentencing practices.[11]
[9]Ibid [33].
[10]Ibid.
[11]Ibid [34]–[35].
Consistent with a concession made by the applicant’s counsel, the judge considered that the only appropriate sentence was a term of imprisonment.[12]
[12]Ibid [36].
The judge gave extensive consideration to the fact that the applicant had pleaded guilty.[13] He considered that the plea demonstrated remorse.[14] He also considered that it had further value because it was given during the COVID-19 pandemic.[15]
[13]Ibid [37]–[44].
[14]Ibid [39].
[15]Ibid [40]–[44].
However, he described the applicant’s offending as ‘serious’. He noted that the offences were committed in a compressed timeframe, and that the applicant was on bail and serving a CCO at the time. He considered that the ‘objective seriousness’ was indicated by a number of matters which included:
·each of the applicant’s victims were offended against at night whilst they were using public transport to go about their lives;
·the applicant was unknown to any of his victims;
·the applicant chose his victims at random; and
·in charges 1 and 2, the applicant continued to offend against his victims after each of them had clearly declined his approaches to them.[16]
[16]Ibid [45]–[46].
The judge then took into account several mitigatory factors, including:
·the applicant’s relatively young age, experience of civil war in Somalia, loss of both parents at a very young age, and resulting life as a refugee in Uganda and Australia;[17]
·that the applicant’s education was interrupted and limited, and that he has a limited criminal history which has been driven by alcohol abuse, homelessness and poverty.[18]
[17]Ibid [47].
[18]Ibid [48].
The judge assessed the prospects of rehabilitation as ‘fair’, noting that the applicant has a proven capacity to obtain and retain employment when sober, and that he had the support of his sibling family.[19] However, the applicant’s counsel had specifically submitted that the principles in the cases of R v Verdins[20] and Bugmy v The Queen[21] had no application (which he considered was an appropriate concession).[22]
[19]Ibid [49].
[20](2007) 16 VR 269; [2007] VSCA 102.
[21](2013) 249 CLR 571; [2013] HCA 37.
[22]Reasons, [50].
The judge noted that he had moderated the cumulation of individual sentences for each of the charges to ensure that no crushing sentence was imposed, and had moderated the overall sentence to take into account the seven months served for other offending without the chance for any concurrency for the present offences.[23]
[23]Ibid [51].
The judge concluded:
The offending calls for a sentence of imprisonment with a non-parole period to satisfy the sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and protection of the community.[24]
[24]Ibid [52].
Proposed ground of appeal
As mentioned already, there is a single proposed ground of appeal, that the individual sentences and orders for cumulation on charges 1 and 2 were ‘manifestly excessive’.
The key submission made in support of this ground was not concerned with the relatively limited points raised in mitigation. Rather, it was that the sentences of 4 months’ imprisonment were out of all proportion to the objective seriousness of the offences.
The applicant submitted that the offences were not ‘conventional’ examples of the offence of assault as there was no fighting, or physical blows, or an attempt to harm or intimidate the victim. He submitted that the contact which he made with the victims’ bodies was ‘gentle and brief’, and was in each case a ‘gesture of familiarity.’ The applicant suggested that his conduct was comparable to other forms of offensive or disorderly behaviour on public transport, which are apt to make other transport users ‘uncomfortable.’
The applicant submitted that the proposition that a custodial sentence of several months’ duration is a live possibility ‘every time’ a person subjects another to unwanted touching on the leg would be a ‘surprising’ one.
The applicant highlighted that it was not controversial that, in the absence of charge 3, the common assault charges would have been dealt with in a court of summary jurisdiction and by way of a non-custodial disposition. The applicant highlighted that an ‘assault’ in the Magistrates’ Court would ordinarily be charged as a statutory offence under s 23 of the Summary Offences Act1966 with a maximum penalty of 3 months’ imprisonment.
The applicant suggested that the judge tended to treat charges 1 and 2 conjunctively with charge 3 in his reasons, making a number of observations about the commonalities between the offences, and noting that the offences had been committed in a ‘compressed timeframe’. The applicant highlighted that the judge had queried whether this indicated a pattern of escalation in the applicant’s behaviour, which was not an appropriate characterisation. The applicant submitted that on this basis, it appeared that the gravity of charges 1 and 2 had been ‘inflated’ by juxtaposition with the charge of aggravated assault.
The applicant submitted that the only feature of the offences noted by the judge in assessing the objective seriousness of the offences was the fact that the applicant had ‘continued to offend against your victims after each of them had clearly declined your approaches to them’. The applicant submitted that whilst this was of some relevance to the gravity of charge 2, it was not relevant in relation to charge 1 as that offence was constituted by a single act.
The applicant submitted that the declaration under s 6AAA of the Sentencing Act 1991 indicated that the judge considered the plea to be a matter of meaningful weight, which made the sentences of 4 months’ imprisonment (for a relatively youthful offender with ‘fair’ prospects of rehabilitation) more ‘striking.’
By way of conclusion, the applicant submitted that the sentences of 4 months’ imprisonment, with orders for cumulation of 2 months’ imprisonment, were so out of proportion to the nature of the offending as to indicate an underlying error of principle.
The respondent submitted that the applicant had mischaracterised the gravity of the offending, which was sexual conduct carried out against women travelling alone at night by public transport. The respondent also contended that the applicant had failed to demonstrate any anomaly in the sentence imposed.
Analysis
In my opinion, it is not reasonably arguable that the sentences imposed in relation to charges 1 and 2 were manifestly excessive.
As highlighted by the respondent, a number of the applicant’s alleged anomalies and/or complaints may be readily rejected in circumstances where it was accepted that a term of imprisonment was appropriate. First, it is not to the point that the applicant could have been charged under a different provision since the offences were charged and pleaded as common law assaults, both carrying a 5 year maximum sentence. A Magistrate would also be in a position to impose a sentence of up to 2 years’ imprisonment for a single common law assault.[25] Secondly, the judge made no finding regarding a pattern of ‘escalation’ of the applicant’s behaviour, as the applicant sought to suggest. Thirdly, the s 6AAA declaration is not part of the sentence actually imposed, and is of little to no use in assessing the sentence actually imposed.[26] Fourthly, not all unwanted touching on the leg will give rise to a custodial sentence of several months. The crucial issue is whether such a sentence is justified in the particular circumstances.
[25]Sentencing Act1991, s 113.
[26]Dunford v The Queen [2021] VSCA 304, [40]–[42].
The judge was also correct to find that the offending the subject of both charges involved offending after each victim had declined the applicant’s approaches. In respect of charge 1, even after the rejection of his initial approaches (in pulling the victim’s hand to his face to kiss it), the applicant proceeded to offend by sliding his hand towards his victim’s groin. In respect of charge 2, the applicant ran his hand up his victim’s leg on two further occasions after she had asked him not to touch her.
Considered overall, then, I do not accept that the sentences were ‘out of all proportion’ to the objective seriousness of the offences the subject of charges 1 and 2.
The offending may not have involved physical violence, and the actual physical touching may have been ‘brief’. However, it is not comparable to generalised ‘disorderly’ behaviour on public transport. Rather, as submitted by the respondent, the offences involved sexual conduct which targeted random, vulnerable women, travelling alone at night, whilst they were using public transport. In such circumstances, the judge rightly identified general and specific deterrence, denunciation, and protection of the community as important sentencing considerations.
The applicant’s complaints regarding cumulation were also unjustified in all the circumstances. Those circumstances included that there were two occasions of offending; those occasions involved two different individuals; and that the applicant was on both a CCO and on bail.
Conclusion
The individual sentences and orders for cumulation on charges 1 and 2 were plainly within the available range. Leave to appeal should be refused.
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