DPP v Amin [2019] VCC 1756

25 October 2018 was the last day of her schooling and was to be celebrated as 'muck up' day. After school assembly, she and some friends went to a hotel and had lunch. Whilst there, she consumed a Smirnoff double black premixed drink. Afterwards, AB and her friends went to another friend's home where she consumed a bottle of cider. At about 8.20pm that night, AB left her friend's house with four other school friends and travelled into the city to go to the Billboard nightclub at approximately 10pm.

6. It is estimated that AB consumed about seven further drinks before she met you. That included at least five shots of straight spirits. Whilst there, you spoke with AB and told her that you were from Pakistan. You bought her two raspberry vodkas. AB believed that you bought her two or three more drinks as she continued to dance and talk with friends. At about 3am, you offered to take AB home. She told two of her male friends that she would be getting a lift home from you.
7. A friend of the complainant later told police that she saw AB at approximately 2am and stated, 'I was a bit worried about her because she looked really drunk... She was unable to maintain eye contact while we were talking'. Another friend observed that '...she was pretty drunk. Each time I saw her, she had a different drink in her hand'.
8. AB left the nightclub with you and three other people, two females and one male. The other male drove the car back to the student accommodation where you lived in Footscray. AB stated, 'everything is very hazy at this point. I don't really know what was going on. I can't put a lot together. I think I had been drinking about this much for the past five or six months. It has never felt like this. I can barely remember anything'. She thought that you had taken her to a McDonald's at the Crown Casino, but in fact, once you had gone to the student accommodation you then drove AB to McDonald's on Ballarat Road in Footscray. Once you returned, you sat in the lounge area of the lodge with other people who had been at the nightclub. AB asked you if you would take her home and you responded, 'how about we sleep for half an hour then I wake you up and will go'.
9. The victim cannot recall how she got from the couch in the lounge area to your bed, but believed that she must have passed out immediately. One of the other students at the lodge observed you with one arm around AB guiding her to your bedroom. She formed the view that you both seemed pretty drunk. Another witness who had not consumed alcohol commented to police that AB, 'seemed to be drunk. I thought that because she was unsteady and falling'.
10. The victim woke to you penetrating her vagina with your penis. She was not wearing clothes and had no recollection of how they had been removed. She was on her stomach and you were trying to lift her legs by grabbing her around her hips. She could not move and felt weak. She could not feel her arms or legs and passed out again. When she woke for the second time she found her phone and started crying which woke you up. AB said to you, 'I want to go home where are my clothes?' She then went into the bathroom and sent text messages to her friends telling them that she had been raped. You told her to stop crying and you then drove her home.
11. The offences were reported to police later that day. About 10:40pm, police executed a search warrant at your address. They located three used condoms and AB's underwear. You were arrested and taken back to the Sunshine police station. Your phone was seized and you provided the pin code to enable police to interrogate it.
12. As a result of the answers you gave in your record of interview with police, videos on your phone were located which depicted you penetrating the vagina of the victim with your penis and fingers on multiple occasions. As indicated earlier, three of those acts constitute charge one. One video depicted you rubbing your feet on the buttocks and vagina of the victim. That act constitutes charge two.
13. In summarising these matters, Ms James emphasised that during the videos the victim was completely non-responsive and essentially unconscious.
14. In your interview of 26 October 2018, you explained that you had gone to the Billboard nightclub for a friend's birthday, having arrived there at about 11:30pm. You said that you'd consumed nine shots of vodka before leaving for the nightclub and drank one shot whilst you were there. You said that you brought AB, 'four-three-three shots'. You acknowledged that she was drunk.
15. As to what happened once you arrived back at your lodge, you stated that AB wanted to sleep and you said, 'I just made her sleep in my room'. You asked if you could sleep next to her and you say she said she, 'didn't have the strength to move to that side, so you just go in that side'. As to the sexual activity you stated that, 'she was really enjoying it as well because if I was moving, like a bit, she was like moving by herself and everything'. You said that you used three condoms because the first two ripped. You said there were two occasions where you had sex and that on the first occasion the victim was lying on her chest and did not say anything.
16. When you were asked why you thought the victim was enjoying it you said, 'she didn't even try to stop me once and the moment she did I swear I immediately got off'. During the second time you had sex with AB, you said that you asked the victim to lie on her back and she responded by saying, 'I'm too tired to move right now'. When you penetrated her again you stated to police, 'She didn't say nothing she just-by-by her hand she stopped me, so I-I just got off'.
17. After a break in the interview you were asked further about the videos that had been found on your phone. There were in fact four video clips, the first went for one minute and 31 seconds, the second for seven minutes and 34 seconds, the third for 13 seconds and the fourth for one minute and 43 seconds. It is apparent that these videos were taken over a period of something in the order of 45 minutes.
18. When asked whether AB was aware that you were making these recordings you said, 'I don't know I don't think so ... I have no idea I wasn't looking at her'. You suggested that AB was awake because she had moved her hands and although she had her eyes closed you suggested she was aware of what was happening. You admitted that you did not ask permission to record the victim. You denied that the sexual activity occurred without the victim's consent or while she was unconscious.

1. Turning to the impact your offending has had, AB provided a statement which sets out that impact. She describes herself as never having felt so alone and violated as she did at the time she realised what you had done to her. It was a life changing moment. She no longer feels comfortable being alone, she is prone to become much more upset and frequently experiences intrusive thoughts about what happened. It has also impacted on her relationship with her family.
2. AB further explained that what you did to her occurred a week before her Year 12 exams. She had worked hard throughout the year to place herself in the best position to obtain good marks. Unfortunately, she was so affected by what happened that she was not able to perform well.
3. You should understand that the impact your crimes have had on the victim is a significant consideration in the formulation of the sentence that must be imposed.

1. Turning to your personal circumstances, you were born on 3 August 1999 and are now 20 years of age. You were 19 at the time of this offending. You have no prior convictions.
2. Your family is of Pakistani heritage, however you have never lived in that country, having grown up in the city of Al Khobar in Saudi Arabia. Your father works as a manager of a number of restaurants. You have a sister at university in Karachi in Pakistan, and a younger brother who studies at an international school in Al Khobar. It is your understanding that your mother and younger brother are currently in Karachi and that they are experiencing difficulties in being permitted to re-enter Saudi Arabia.
3. You attended an international school where you completed the equivalent of Year 12. Your studies were conducted in English and it is evident from the material tendered on the plea that you were an outstanding student achieving a high academic standard. You also excelled in sport, particularly in cricket. You were the sports captain of the school and went on to represent Saudi Arabia in their under 19 national team which toured Pakistan, Kenya, Malaysia, Kuwait and Bahrain. Your ambition was to play cricket professionally.
4. I was told that you grew up having to observe what was described as the strict moral requirements for those living in Saudi Arabia. There were few opportunities to socialise with women and you had not consumed an alcoholic drink before coming to Australia.
5. You arrived in this country on 10 July 2018, having come here to study for a Bachelor of Sports Management at Victoria University. You immediately commenced your studies and rented accommodation at the Uni Lodge in Footscray. You quickly became involved in playing cricket for Auspak and then the Sunshine Cricket Club. Before this offending, you were looking for opportunities to play at the highest level.
6. A number of personal references were tendered on your behalf. They included references from friends Hoor Khan, Adnan Khawaja, Ali Vaseer, Zeeshan Sarfraz and Sana Shahid Malik, who have known you from Saudi Arabia or have met you since you arrived in Australia. They confirm your otherwise good character, your normally respectful manner and how out of character they regard your offending.
7. References were also provided from the Academic Director of your previous school, Azra Nayeem, and one of your teachers at Victoria University,

Ms Monica Fly. It is clear that you were a highly motivated and intelligent student who was admired by your peers. A further reference was provided by the Chief Executive Officer of the Saudi Cricket Centre confirming your participation in the Saudi under 19 cricket team. He states:

"After every tour where he had represented [the] Saudi Arabian U19 team, he was reported by the Team Management [to be] well-behaved, disciplined and [a] cultured boy. His positive energy, understanding of the game and passion for cricket, at a young age, was immense and his ever smiling attitude made a charming young boy."

1. At the request of the parties, I have not had regard to the reference from Arslan Ali.
2. Mr Kenny, who appeared on your behalf, submitted that you had been in Australia only for a relatively short time when you committed this offence. You had started experimenting with alcohol and to a lesser extent cannabis in an unhealthy way, free of the constraints you had been brought up with in Saudi Arabia. You committed this offence opportunistically, it was contended, whilst you were under the influence of alcohol, although it was not contended that that should excuse your conduct in any way.
3. Whilst it was acknowledged that this offending was aggravated by the fact that the complainant was vulnerable because she was so badly affected by alcohol and asleep at the time you raped her, and the fact that you filmed the offending without her knowledge or consent, it was nonetheless submitted that this offending should be characterised as sitting at the lower end of the range of seriousness for the offence of rape. This was put on the basis of there being no other aggravating features.
4. Counsel also relied on your plea of guilty which was entered at an early stage in the process. The complainant was never cross examined and she was never required to attend court or prepare to be cross examined. It was said you made full admissions and those matters taken in combination reflected your preparedness to accept responsibility for this offending and a willingness to facilitate the course of justice. In addition, it was said you are a young offender with no prior convictions with good prospects for rehabilitation. These submissions were supported and reiterated by Ms Di Paolo when this matter returned before me.

1. As to the prosecution submissions, in summary, Ms James submitted that this offending required significant denunciation and emphasis on general and specific deterrence. The victim was particularly vulnerable, the offending encompassed a number of acts of penetration and an additional degrading sexual assault, and much of the offending was filmed. It was submitted such offending could not be characterised as tending to the lower end of the range for seriousness for these sorts of offences.

1. In evaluating these submissions, it is important to bear in mind that you committed this offence when you were 19 years of age, and had just turned 20 at the time of the plea. You are therefore by definition under the Sentencing Act 1991 (Vic) ('the Act'), a 'youthful offender'. To properly consider the parties' submissions, I sought assistance from the Youth Justice authorities in the form of a Pre-Sentence Report. The plea was adjourned to 25 October 2019 to enable that report to be compiled.
2. Responding to that request, Ms Kelly Steriadis, Senior Youth Justice Case Worker, provided a report dated 17 October 2019 to the Court and to the parties which comprehensively and very helpfully assessed your background and current circumstances. The report was endorsed by Ms Amelia van Lint, Youth Justice Senior Practice Advisor. It examines your suitability for confinement in a Youth Justice Centre pursuant to section 32 of the Act by assessing whether you have reasonable prospects for rehabilitation and whether you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
3. As to your prospects for rehabilitation Ms Steriadis states as follows:

"It is assessed that Mr Amin presents with reasonable prospects for rehabilitation. In formulating this assessment, consideration was given to the fact that Mr Amin has had no prior contact with the criminal justice system, the responsibility he has taken for the offending behaviour and positive response to Youth Justice intervention. Mr Amin also appears to be supported by his family overseas and has articulated pro social goals and a desire to desist from further offending behaviour and entrenchment in the criminal justice system.

Mr Amin's behaviour appears to be largely influenced by his substance abuse, lack of consequential thinking, poor decision making skills and poor understanding of consent and healthy relationships. Youth Justice note that Mr Amin has demonstrated a willingness to address his identified risk/need issues assessed as contributing to his offending (evidenced through CHART) and has reported to be motivated to maintain engagement with Youth Justice in conjunction with programs and supports available to him at Malmsbury Youth Justice Centre. Notwithstanding this, it is further assessed that Mr Amin will require further assessment in regards to his treatment needs in relation to sexual offending."

1. As to your level of maturity, Ms Steriadis further wrote:

"Mr Amin is assessed as particularly impressionable, immature and likely to be subjected to undesirable influences in an adult custodial facility. Mr Amin is a young person who presents at Court with no prior history of criminal justice involvement, who has not been subject to previous community and/or custodial dispositions. The offending behaviour was commissioned at the age of 19 years and appears to correlate with developmental immaturity. In addition to this, Mr Amin is small in stature which raises concerns regarding his potential vulnerability should he be subjected to older, more established offenders in an adult setting.

Furthermore the writer has given significant consideration to the serious nature of the offences before the Court and the facilities available within an adult prison setting. The writer acknowledges the undesirable influences that long term exposure to adult offenders who are criminally entrenched, as being factors that may further hinder on Mr Amin's prospects for rehabilitation."

1. The report concludes that you would be suitable to undertake a Youth Justice Centre Order.
2. It goes without saying that offending of this nature is, as your counsel

Mr Kenny properly acknowledged, inherently serious. Here, the exploitation and violation of a young woman who you knew to be extremely vulnerable, whilst filming her without her knowledge or consent, necessarily requires a stern response. Nor, in sentencing you, can I lose sight of the fact that your offending changed a young woman's life in a way which was very much for the worse.

3. It follows that I accept Ms James' submissions that the objective features of this offending should not be characterised as tending to the lower end of seriousness for these offences, and that the purposes for which I must impose sentence on you will need to emphasise to others who might be minded to behave in a similar way that such behaviour is completely unacceptable. It will also need to mark and denounce your rape and sexual assault of this young woman as conduct which cannot be tolerated.
4. Rape is a standard sentence offence for which the standard sentence is 10 years' imprisonment. Whilst this is not a determinative factor, it is a matter that I must take into account in the overall assessment of the appropriate sentence. In so doing, I should state that I regard your offending as approaching the mid-range of seriousness, objectively assessed.
5. That said, there are some powerful subjective features in your case which must assume some importance in the sentencing equation. You are a young offender with no prior convictions, who was brought up in a relatively sheltered environment and offended when left to your own devices not long after you arrived in this country. You pleaded guilty, have taken responsibility, facilitated the course of justice and shown what I regard as genuine remorse. You have never previously offended, you are otherwise of good character, you are small in stature, you are particularly immature, impressionable and likely to be very vulnerable in an adult prison. Moreover, you have reasonable prospects of rehabilitation if your sentence was to be served in a Youth Justice Centre.
6. In setting out my reasons for sentence, I am required to explain how the sentence I impose on you relates to the standard sentence. There is very little available in the way of current sentencing practice, given the 'clean slate' that the standard sentencing scheme creates, although I note the approach taken by His Honour Judge Smallwood in DPP v Hyde[1]. Parliament has chosen to leave open the possibility of a sentence of youth detention in respect of the standard sentence offence of rape, though it may be expected that such Orders will now be made less frequently. Nevertheless, youth detention will be appropriate in some cases and ultimately I have determined that this is such a case.
7. Whilst I have concluded that a substantial period of confinement must be imposed to satisfy the various sentencing purposes to which I have already referred, I have also concluded on the basis of what I have found to be powerful subjective circumstances in your case, that confinement in a Youth Justice Centre, rather than adult prison, would represent a just and appropriate sentence. In reaching that conclusion, I have taken into account the criteria set out in section 32 of the Act, and the fact that you well and truly fulfil all of those criteria. In addition, I have taken all of the matters set out in section 5(2) of the Act into account.
8. I must also take into account the fact that on 25 January 2019, your student visa was cancelled, you lost your liberty and you were placed in immigration detention. According to the enquiries made by Ms Steriadis, you have done your best to engage in that environment as positively as you could in the circumstances. Although immigration detention is not meant to be as punitive as imprisonment, in your circumstances, I am satisfied it has had a punitive effect. That is so because in losing your liberty, you lost the capacity to pursue your studies, which had been your original purpose in coming to this country. Consistent with authority[2], your immigration detention which I have calculated at 270 days will be taken into account in a 'broad and practical way' in formulating the sentence to be imposed.

1. Mr Amin, would you please stand? On the first charge, that on 26 October 2018 you raped AB, you will be convicted and sentenced to be detained in a Youth Justice Centre for a period of three years and six months.
2. On the second charge, that on that same day you sexually touched AB, you will be convicted and sentenced to be detained in a Youth Justice Centre for eight months.
3. I will direct that the sentence imposed on charge two be served concurrently with the sentence imposed on charge one.
4. I will further declare under section 6AAA of the Act that, but for your plea of guilty, you would have been sentenced to a total effective sentence in adult prison of five years and eight months, with a non-parole period of three years and six months.

[1] [2019] VCC 712

[2] See Underwood [2018] VSCA 87 and Sahhitanandan [2019] VSCA 115, paras [34] - [37].