R v Sela Ratu QORO

[2007] NSWDC 107

CITATION:	R v Sela Ratu QORO [2007] NSWDC 107
HEARING DATE(S):	28 August 2006 -14 September2006 - Trial 17 November 2006, 9th February 2007, 2nd March 2007, 27th April 2007 - Sentence
JUDGMENT DATE:	27 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [31]
CATCHWORDS:	Criminal law - Sentence - Aggravated sexual assault - Deprivation of liberty - Joint criminal enterprise
PARTIES:	Crown Sela Ratu Qoro
FILE NUMBER(S):	06/11/0214
COUNSEL:	P. Adey (Crown) A. Betts (Offender) Trial G. Brady (Offender) Sentence Hearing
SOLICITORS:	NSW DPP Brenda Duchen

SENTENCE

1 HIS HONOUR: Sela Ratu Qoro appears for sentence today after having being found guilty by a jury of one of the most serious offences known to the criminal law. He was charged that whilst in the company of other male persons he had sexual intercourse with the complainant without her consent, knowing that she was not consenting thereto, and deprived her of liberty for a period before that offence was committed. The maximum penalty for that offence is life imprisonment and it carries a standard non-parole period of fifteen years. That is a very good indication of the seriousness with which parliament and of course the community regards offences of the type I am about to describe.

2 I should mention at this stage of my remarks on sentence that there is currently in progress a trial of a person who the crown says was a co-offender with Mr Qoro. There should, of course, be nothing published concerning the present proceedings or these remarks on sentence which would prejudice the accused in that trial.

3 The evidence at the trial involving Mr Qoro established that on 24 November 2005, the complainant was sexually assaulted by a very large number of men in a bedroom on the first floor of a terrace house in Eveleigh Street, Redfern. It was impossible, when listening to the complainant give her evidence, not to be struck by the callousness with which she was treated by the men who were assaulting her. She was treated as an object for their sexual gratification and nothing more. She was not treated as a human being. Those assaulting her cared nothing about the distress she was undergoing and the damage they were causing.

4 The complainant identified Charles Weatherall as being the ring leader. She was forced to perform oral sex on him and he incited others to sexually assault her, at one time urging them to, “be as rough as you like, she likes it”.

5 The complainant was held prisoner while various men abused her. She was subjected to anal and vaginal sexual assaults, as well as being forced to perform oral sex on many men who at this stage remain unidentified. These matters all took place in the first floor bedroom and there is no evidence to establish that this offender was one of the men who assaulted the complainant at that stage.

6 The evidence as to what the offender did to the complainant concerned what happened after she was moved to an adjacent room where there was a couch and a minimal furniture. She was thrown on to that couch and seated next to a young man who had been in the bedroom earlier. She described in evidence what happened. She referred to the offender as the “islander guy”, so in view of the jury’s verdict, when reading the complainant’s account of what happened to her at the hands of the offender, I will use the words “the offender” where the complainant has used the words “the islander guy”. This is what the complainant said,

“I got taken in there and got pushed down onto a sofa and the young guy had come and sit on the left-hand side of me and there was the offender. And I can’t remember who it was but someone had taken me in there and the offender came in and stood in front of me on the sofa and had pulled out his penis and grabbed the back of my hair and started making me give him oral sex. He was holding the back of my head and when the young guy came and sat on the left-hand side of me, he was trying to grab my head away from the offender and at first he was grabbing my hands, trying to make me rub his penis and then he was trying to pull my head away from the man standing in front of me to force it down on his penis.”

7 She described the offender this way,

“He had a really large stomach, he was fat and wearing beige shorts and a dark green t-shirt with a short sleeveless shirt over the top. And he had a white hat on backwards and you could see dreadlocks coming out of the side. I’d noticed while he was making me give him oral sex that he had three sort of black marks, sort of circles. They weren’t like the lump that Charles had, they were black and they were scattered on the top of his penis.”

8 The complainant gave evidence that the offender ejaculated during that particular act of oral sex. After the complainant had been subjected to this dreadful assault, a man identified as Shaun Weatherall rescued her. She was led to safety by him. He gave her a drink and the opportunity to dress herself and some money to get home. She went to the nearby home of a female acquaintance and made immediate complainant of having been raped.

9 The evidence against the offender was remarkably strong. His case was one of mistaken identity but there was significant evidence in the trial to prove that the offender was the man who had forced the complainant to have sexual intercourse without consent in the second room. That evidence concerned three lumps which the complainant observed on the islander guy’s penis which later turned out to match the three lumps that the offender has in his penis. Some of the strongest evidence to establish the accuracy of identification of the offender came, inadvertently no doubt, from the offender’s wife. The complainant described the penis of the man who was assaulting her as very small with three marks along the top. She said,

“On the top of his penis there were - I don’t know if they were black warts or whatever - but they were different sizes and they were on the top of his penis.”

10 The crown case established that the offender does have three lumps of different sizes on his penis. Mrs Qoro gave evidence that her husband had three lumps on his penis. This was consistent with what a police officer noted when he made an examination of the offender’s genitals.

11 In the trial there was some evidence called as to the practice of genital beading amongst some cultures. The offender gave evidence at trial that that was a practice that he had followed and that was how he got the lumps on his penis. As I told the jury, as a matter of logic, the more unusual the accused’s penis is, then the greater the support for the crown case that the complainant describes these unusual features.

12 The crown case was that the complainant got right an impressive number of unusual details. Not only did she know about the lumps but on top of that she knew how many there were and that they weren’t all the same size. I reminded the jury also that although the complainant said that the lumps were on top of the offender’s penis, in fact they turned out to be in a different location. Nevertheless, as the jury verdict indicates, they were clearly satisfied beyond reasonable doubt that the offender was correctly identified as being the man who sexually assaulted the complainant in the second room.

13 It is important to remember that the charge for which the offender is to be sentenced contains within it an element concerning the offender’s detention of the complainant, before he had sexual intercourse with her. The crown allegation, which the jury accepted, was that the offender was part of a group of men who kept the complainant where she was so they could have sexual intercourse with her without her consent. Each of the men who had sex with the complainant, including the offender, were, according to the crown, all part of a group of men who amongst other things kept the complainant a prisoner, that is they stopped her from leaving the house so they could all have their turn at assaulting her. Clearly the jury accepted that this offender was part of a joint criminal enterprise with others, who agreed that they would detain the complainant that evening.

14 The evidence and the nature of the charge thus established that the offender is not to be sentenced as though he did not know about what had happened to the complainant before he sexually assaulted her. I will sentence the offender on the basis that when he forced the complainant to perform oral sex on him, he well knew that she had already been subjected to degrading and repeated forced sexual intercourse at the hands of a number of other men.

15 The description of the offender’s conduct and the circumstances in which it occurred fully justified the attitude that parliament has shown to offences of this nature by providing a maximum penalty of life imprisonment with a standard non-parole period of fifteen years. Of course, the standard non-parole period applies to an offence in the middle of the range of objective seriousness, and an assessment of the seriousness of the particular offence requires examination of the various aspects which go to make up the offence. The offender was in company with only one other man at the time he sexually assaulted the complainant, although there were a significant number of other men nearby. He was clearly involved in the joint criminal enterprise to deprive the complainant, that enterprise being an agreement between many others.

16 The form of sexual intercourse was oral intercourse. Some people might think this is a more serious form of intercourse than others whilst others might take a different view. In times past, it was sometimes said that there were gradations of forms of sexual intercourse. It may still be possible to say perhaps that digital vaginal penetration is a less serious form of sexual intercourse than others, but I do not believe that it is possible to say that forced oral sex is any worse or better than forced vaginal or forced anal sex, in particular in a case where, as here, the offender ejaculated.

17 Further in assessing the objective gravity of the present offence, I note that the complainant was deprived of her liberty for a very lengthy period of time, although it cannot be said one way or the other whether the offender’s involvement in the deprivation of her liberty came about early on or perhaps only shortly before he sexually assaulted her. In such circumstances, it is not possible to say that this aspect of the offender’s misconduct is worse or better than it would be in a case in the middle of the range of objective seriousness.

18 I also note that the circumstance of aggravation in the present case concerns the deprivation of the complainant’s liberty and that the offence in s 61J(a) also covers other circumstances of aggravation concerning the malicious infliction of actual bodily harm or threats to inflict actual bodily harm by means of an offensive weapon. There is nothing in those circumstances to automatically suggest that an offence involving the deprivation of a person’s liberty is automatically any more or less serious, objectively, than an offence where the other circumstances of aggravation are involved. For these reasons, I am satisfied that the offence is correctly described as being in the middle of the range of objective seriousness for offences under s 61J(a).

19 The offender is forty-four years of age. Depending on which report I rely on he was born in either the Solomon Islands or Fiji. He appears to have been raised in Fiji with his parents separating when he was relatively young, having no contact with his father since then. He told a psychiatrist that when his mother remarried he experienced frequent violence from his stepfather.

20 He came to Australia in the early 1980s as part of a boxing promotion, he being talented at that sport. He married in 1984 and he and his wife now have five children, their sixth child, Wesley, having died on 18 April 1983. The offender gave up boxing after marrying and since then he has had several unskilled casual positions for short periods, but has been largely unemployed since 1999. He is, or was, the primary caregiver to his children.

21 The offender is a person who has a number of difficulties as far as his mental abilities are concerned. He is unable to read and write and has difficulties communicating. A psychologist’s report prepared in 1995 suggests that the offender functions in the moderate range of intellectual disability. On top of that, the offender has been hearing voices for some time and is now treated whilst in custody with antipsychotic medication. These two factors suggest that when assessing the appropriate sentence to impose on the offender less emphasis should be placed on general deterrence than would otherwise be the case. They also suggest that the offender’s time in custody will be harder than if he were psychiatrically well and did not have any intellectual disability. Further, the offender has previously been assaulted whilst in gaol.

22 The fact that the offender’s time in custody will be harder than usual is a very important factor which suggests the imposition of a non-parole period less than the standard. There are, of course, other factors in this case suggesting the imposition of a non-parole period less than the standard. Those other reasons are to be found elsewhere in these remarks on sentence.

23 Also relevant to the circumstance in which the offender will serve his sentence concerns the fact that he is currently on protection. Initially when the offender himself gave evidence, he described his condition as being that he was locked in his cell, as he said, “twenty-four seven”. However, it later appeared that he was let out of his cell to exercise in the yard attached to his pod and also, for two days a week, was allowed out of his cell in order to attend English classes. He would have had access to drug and alcohol counselling except that he applied for that too late.

24 I do not wish to minimise the terrible circumstances in which prisoners serve their sentences in some gaols when I say that the evidence given by the offender does not suggest that he will serve his time in custody significantly harder than otherwise because of the fact that he is currently on protection. Even prisoners not on protection will spend a large proportion of each day locked in a small cell in some prisons.

25 One of the issues raised during the hearing of the sentencing proceedings concern the relationship, if any, between the offender’s psychiatric condition and his offence. Nothing in the material presented to me suggested any connection at all. For example, there is no suggestion that the voices told him to abuse the complainant in the way he did, nor was there any evidence that because of his psychiatric condition he was less able to make appropriate decisions about his conduct that night. There seems to be no connection between the offender’s psychiatric illness and his moral culpability at all.

26 One of the factors that has delayed the resolution of the present sentencing proceedings concerns an issue raised today when Mrs Qoro gave evidence. She gave evidence as to the effect of the offender’s incarceration upon their children, in particular her daughter who is twenty-two, her son Gregory who is seventeen and another son who is eight. I have to say that the evidence did not establish any exceptional hardship. The evidence in chief from Mrs Qoro was to the effect that Gregory had begun having problems with drugs, hanging around with the wrong people, and is significantly disadvantaged through not having his father’s influence around in order to control him. In evidence-in-chief, Mrs Qoro said that, “Gregory would listen to his father, but not listen to me”. However, in cross-examination a rather different picture appeared.

27 It is the case that the offender has spent regular times in custody. Indeed he had only been out four and a half months before he was arrested on the present charges. During that time, when the offender was at liberty, Gregory was arrested by police, for robbing a taxi driver. That evidence seems to suggest that it cannot be made out that Gregory is significantly disadvantaged by his father’s incarceration.

28 No doubt, however, the offender’s wife will find it much harder to deal with the raising of the children because of her husband’s incarceration. I will take that into account as part of the general mix of subjective factors. I will also take into account that the children will also suffer through their father’s incarceration, but that is a matter which is commonplace when parents are sent to gaol. Finally, in relation to this issue, I will take into account that the offender himself will do his time in custody harder knowing that because of his criminal activities he has left his wife alone to cope with the problems of raising their children.

29 It is a fundamental rule in sentencing that the sentence needs to reflect the objective gravity of an offender’s conduct. The standard non-parole period in a case where there was not a plea of guilty can only be departed from when a judge has given specific reasons for such a departure. As I said, I am satisfied that the offence is objectively in the middle of the range of objective seriousness, but I will not impose a non-parole period as long as the standard. Primarily that is because of the offender’s mental difficulties, but the other reasons I have mentioned also in my remarks on sentence.

30 I will make a small adjustment to the relationship between the non-parole period and the head sentence to make a finding of special circumstances in the offender’s favour. That small adjustment is related to the offender’s intellectual disability and problems with psychosis. But I have to recognise that I have already taken those factors into account in setting the non-parole period and the head sentence, and so to give significant weight in finding special circumstances would be to double count. I have also - and this is perhaps the most important constraint on the non-parole period - to recognise that the non-parole period itself has to reflect the objective gravity of an offender’s conduct.

31 The offender has been in custody since 4 January 2006, the date on which he was arrested for this matter. He is sentenced to imprisonment, I set a non-parole period of ten years. It is to date from 4 January 2006 and will expire on 3 January 2016, on which day the offender is eligible to be released to parole. I set a head sentence of fourteen years.

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