DPP v Mokhtari [2020] VSCA 161

1 The respondent ('AM') was convicted by a County Court jury of four charges of rape, one of false imprisonment and one of sexual assault. All of the offences were committed against the same woman ('L'), a student who had arrived in Australia from overseas in the weeks preceding the offending.

2 He was sentenced to 6 years' imprisonment on two of the rape charges, 6 years and 6 months' imprisonment on the other two rape charges, 4 years on the charge of false imprisonment and 2 years on the charge of sexual assault. With orders for cumulation as set out in the table below, the total effective sentence was 11 years' imprisonment. A non-parole period of 7 years and 9 months was fixed.

3 The Director of Public Prosecutions now appeals against the individual sentences, the total effective sentence and the non-parole period on the ground of manifest inadequacy. The Director's principal complaint is that, although the judge said that these were 'very serious examples' of the crimes of rape, false imprisonment and sexual assault, the sentences imposed did not reflect their objective seriousness or AM's moral culpability. As will appear, AM falsely imprisoned L for approximately six hours, during which time he subjected her to multiple rapes, violence and degrading acts. Furthermore, the offending involved a significant level of planning and deception.

4 For reasons which follow, we would allow the appeal and resentence AM. The individual sentences on the rape charges were well below what was required, given the gravity of the offending and the profound, long-term harm caused to the victim. On each of charges 4 and 5, the sentence for rape will be 8 years and 6 months' imprisonment; on each of charges 8 and 10, the sentence for rape will be 9 years' imprisonment, reflecting the fact that protracted offending of this kind becomes more serious the longer it goes on. With cumulation, the total effective sentence will be 13 years' imprisonment. We will fix a non-parole period of 10 years.

5 The offences were committed in the early hours of 6 May 2016. L was 23 years old. She was a university student from Lithuania, who had arrived in Australia in April 2016 to travel as a backpacker with her boyfriend. L and her boyfriend based themselves in Queensland, and intended to travel from there to various destinations around Australia.

6 L could not legally engage in paid employment whilst in Australia, due to restrictions of her visa, so she created an advertisement stating that she was looking for volunteer work and attaching her contact details. AM was aged 39 at the time of the offending. He contacted L with a message that read: 'Would you like to be a Sales Manager?' L responded saying that she would like to discuss the details.

7 AM contacted L by phone and offered her a 'Sales Manager' job in Melbourne for a company that sold tyres. He stated that he would provide meals and accommodation, in a place where other employees of the business resided, in exchange for her work. After conducting some checks of the details provided by AM, L accepted the offer. She purchased an airline ticket to fly to Melbourne on 4 May 2016.

8 AM then told L that she would not be able to commence work until the following week and that her accommodation was not yet ready. After some further discussion AM said that he would rent a motel room for her to stay in. He collected L from the airport on 4 May 2016 and took her to a motel, where he had booked a room. He told her she would need to stay at the motel for a few nights before the 'employee accommodation' would be ready. The room contained a double bed, a single bed under a window and an attached bathroom.

9 Once they were in the hotel room, AM offered L an alcoholic drink from a bottle that was already in the motel room, but she declined. They briefly discussed the job L was being offered and then AM left. The following morning, AM returned to the motel, where he spent time with L explaining the business and what her role would involve. During the day he purchased food for her. At one point, he again offered her an alcoholic drink, which she again declined.

10 AM told L that he had a girlfriend by the name of 'Saro', who was coming to Melbourne to visit him. He discussed with L that 'Saro' would stay in the motel room with her for two or three nights, but that he himself would not stay there. Later that night, AM took L out to purchase dinner. He told her that his girlfriend was on her way, so they returned to the motel.

11 Back at the motel, L saw AM smoke something from a glass pipe. When L asked if it was a drug, he told her it was some 'Indian stuff'. AM asked L to write a statement to the effect that she was not working with him, just volunteering. L did this, and allowed AM to take a photo of her passport and visa. It was late and L told AM that she wanted to go to sleep. AM said he was trying to make contact with 'Saro' and appeared stressed about this.

12 After some discussion with L, AM said he would go to look for 'Saro'. He then told her that he could not find his car keys so they both started to search for the keys. This went on for some time and L grew more wary of AM and his behaviour. L changed into her pyjamas and got into bed. AM then lay down on L's bed. She angrily asked what he was doing and he responded that he was upset and that she needed to help him.

13 L stood up and told him that she did not like this behaviour and that she had a boyfriend. She put her cardigan on and went outside for a cigarette. AM followed and apologised to her. At this time AM appeared 'normal'. L told AM that their relationship was a work relationship and, if that did not work for him, she would leave. AM apologised again and L returned to the room, with AM following.

14 Seconds after L had re-entered the motel room, AM grabbed her and pushed her onto the double bed. He then put his whole body weight on her. L resisted and started to scream, 'What are you doing?' He grabbed her mouth with his hand, held up his fist and said 'I will beat you if you scream.' (Charge 1 - false imprisonment.)

15 AM grabbed L and pushed her into the bathroom and onto the floor, down between the toilet and the wall. L continued to resist and scream, but he held her down with his body weight and held his hand over her mouth. AM held his fist near L's face and continued to hold her mouth with his hand. AM told her that he was drunk, that he did not want to hurt her and that he was upset that his girlfriend 'Saro' had not come. He told her, 'When I am drunk I am a bad man.'

16 After some time in this position, L told AM that she was cold, and he tried to cover her with her grey cardigan. She asked him to get a sheet from the bed, but AM said he did not trust that she would not run. AM eventually reached through the doorway, with one foot remaining on the bathroom floor, and took a sheet from the bed. He continued to tell her, 'Don't move, don't move.' L noticed that AM's mood was changing and that he was unpredictable. He was expressing concern about his health and tried to indicate to L how fast his heart was beating.

17 AM threatened L multiple times, variously saying to her:

(a) I will beat you up if you shout;

(b) if you will scream I will beat you up, I will put a towel in your mouth and no one could like hear you and I will beat you til - til death; and

(c) if you run and you call the police they will ask you like what you were doing with the man in a hotel. Like you want like sex with him and they will like put you in the gaol or something like that.

18 AM removed the sheet from L, pulled her nightdress up and started to touch her breasts. She said loudly, 'What are you doing? You promised to God you wouldn't hurt me. You want to rape me?' AM then removed his penis from his pants and said, 'What am I gonna rape you with? Look at my dick. It's not working. I just want to touch you. It calms me. Please let me touch you. Let me touch you.' AM then started to suck on L's breasts. (Charge 2 - sexual assault.) He was kissing and licking them. L repeatedly told AM that she did not like it and that she did not want it, but he ignored her.

19 AM was licking both of her breasts, and then started to move his body down toward her vagina. L pleaded with AM, 'Please stop. I don't like it.' AM then licked the upper part of L's vagina and then started to lick inside her vagina. She pushed his head and kept asking, 'What are you doing?'. At one point, AM used his fingers to open the lips of L's vagina to lick inside. (Charge 4 - rape).

20 AM removed L's clothing so that she was completely naked. L was disgusted and begged him to stop. L told him that, if he wanted to kill her, he should do it now because she could not stand what he was doing. After some time, AM dragged L from the bathroom over and onto the smaller bed. By this stage he was naked. He jumped on her and began licking her entire vagina and rubbing his penis and body into L. She repeated that she did not like it and begged him to stop. (Charge 5 - rape.)

21 AM appeared to L to become paranoid about sounds, and movements. He told her, 'Look through the window'. He stood up, grabbed L's hand, pulled her from the bed and put her in front of the window. AM was standing behind her, pointing his finger toward the window stating, 'Look, there's an animal.' L could not see any animal outside, and tried to convince AM that there was not one. She then decided to play along with his delusions, as whilst this was occurring he was not sexually assaulting her.

22 The offending continued over many hours. At all times AM maintained a position blocking L's exit from the motel room. L constantly tried to think of ways to escape, but could not.

23 At one stage AM pulled L onto the bigger bed. He jumped on top of L and rubbed his penis into the lips of her vagina (external genitalia). As he was doing this, AM was making car noises. AM was not able to fully penetrate L's vagina as he was unable to get an erection. (Charge 8 - rape.) At a later stage L was lying on the bed on her stomach and AM was lying on top of her. He put his finger into her vagina, which caused L to jump. (Charge 10 - rape.)

24 AM lay close to L, behind her, with his head near her vagina, and his feet near her head. He held her belly with one hand. L's body was at the end of the bed, where one's feet would usually be. L decided she had an opportunity to escape. She gently took AM's hand from her belly and placed it on his buttocks. He was no longer holding her, or in her way of the door.

25 L jumped from the bed and ran for the door. AM followed and grabbed her, pulling her to the floor. As L struggled AM put three or four fingers into her mouth and down her throat. He used his other hand to cover her nose. L started to choke and could not breathe. She bit his fingers and pushed her fingers into AM's mouth. He bit her fingers. L then gouged at his eyes. This caused AM to let go of L's mouth. He shouted, 'Stop, please stop, please I will let you go.'

26 As AM let go of L she stood up immediately, as did he. L quickly grabbed the door handle and opened the door. She demanded her clothes and her wallet. AM threw her some clothes. L immediately ran to the road, naked with her clothes under her arm. She tried to flag down passing motorists, but none stopped. She put her clothes on and again tried to flag someone down. This time a male driving by pulled over and provided assistance to L. The driver telephoned 000.

27 Police soon attended the motel and found AM in the motel room, where he was arrested. Inside the motel room police found a glass pipe, and two small zip lock bags inside a men's shirt - one containing Viagra tablets and the other containing methylamphetamine.

28 AM was interviewed on 7 May 2016 and denied the allegations of false imprisonment and sexual offending. He stated that he had met L online and had spent the night with her. He falsely claimed that she had given him a tablet of some sort, from which point he had no recollection until he woke in a state of undress.

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Sex Offenders Registration Order (period of 15 years).

30 The judge dealt first with the false imprisonment. He described its key features in these terms:

Your unlawful imprisonment of the victim commenced with you pushing the complainant onto the bed and holding her with the weight of your body.

You threatened to beat and punch her if she resisted or cried for help.

You imprisoned her for approximately six hours. You man-handled her and threatened her with violence on several occasions. On one occasion you said you would 'put a towel in her mouth and no-one could hear you and I will beat you 'til death.'

Your words and conduct were the means through which you imprisoned the victim - they are in effect the particulars of the offence. She suffered numerous injuries during the imprisonment as described by Dr Marr and depicted in the photographs tendered at trial.

The ordeal of being imprisoned by you ended in violence. You dragged the complainant to the ground as she tried to escape. You pushed your fingers into her mouth and into her throat. The victim started to choke and bit down on your fingers. She placed her fingers into your mouth in an effort to fight you off - you bit her fingers. She then gouged at your eyes. You let her go. She fled, naked, with her clothes bundled in her arm, and eventually flagged down a passing motorist.

This final explosion of violence by you demonstrated the lengths you were prepared to go to in order to continue her captivity.[3]

31 Next, his Honour addressed the seriousness of the sexual offences, as follows:

The offences of rape and sexual assault were committed on a young woman you knew to be in an extremely vulnerable position. You knew her presence was due entirely to her falling victim to your ruse of prospective employment. She was a young woman in a foreign country who had left her boyfriend in Queensland to come to Melbourne, where she had no close contacts.

You knew she was your prisoner. You threatened her. She pleaded with you not to rape her. At one point, in the bathroom prior to the incidents of rape you stand to be sentenced for, she stated to you:

You are raping me. If you want to kill me, please kill me now because I cannot stand this.

This was predatory, violent and depraved behaviour. You showed a complete disregard for the victim's fundamental rights as a human being. At no stage did you respond to her obvious distress and trauma in anything other than a base and grossly callous manner.

The victim impact statement describes the severe and far-reaching impact your crimes have had upon her. Her psychological well-being, her enjoyment of life and her relations with others are all damaged significantly. The terror and gross violation you subjected her to remains with her daily. She feels broken. She feels she is a different person. She has lost confidence and self-belief. She suffers panic attacks and severe anxiety. She is depressed. The world appears to her to be a very different place to what it did before. You did this to her.[4]

32 In summarising his view as to the predatory nature of the offending and the level of planning involved, the learned trial judge said this:

you embarked on an elaborate plan to lure the victim to Melbourne and have access to her in the motel room in anticipation of making sexual advances towards her. All of the circumstances point to such a ruse - in particular the methylamphetamine and Viagra found in your shirt.

The victim was alone and isolated. You had created a situation and manipulated it in a way that enabled you to force yourself upon her when your sexual advances were rebuffed.[5]

33 The judge said that AM's offences represented 'very serious examples' of the crimes of false imprisonment, rape and sexual assault.[6] The principal complaint advanced on the appeal is that the individual sentences imposed for the rape and false imprisonment offences simply did not reflect the objective gravity of the offending.

34 According to the Director's submission, this offending was 'particularly grave', having regard to the following matters:

(a) AM falsely imprisoned L for approximately six hours, during which he subjected her to repeated sexual and physical attacks;

(b) the offending involved a sophisticated level of planning, deception and entrapment;

(c) the commencement of the attack on L was sudden and terrifying, as AM forced her into the bathroom where she was 'entirely at his mercy';

(d) the multiple rapes involved oral, penile and digital penetration of L's vagina and occurred as discrete episodes over the period of the false imprisonment;

(e) AM used threats and physical violence to detain L;

(f) he ignored L's desperate protests and her obvious distress; and

(g) when L sought to make her escape, AM attacked her violently, demonstrating the lengths that he was prepared to go to in order to continue her captivity.

35 Senior counsel for AM properly conceded that this was very serious offending. No issue was taken with the trial judge's assessment of its seriousness, or of its impact on L. On the contrary, the submission for AM relied on the care and thoroughness with which his Honour had reviewed the seriousness of the offending, and the correctness of his assessment, as strongly militating against any appellate intervention. Emphasis was placed on the importance of the sentencing discretion committed to judges at first instance, the exercise of which - it was said - should not be lightly disturbed.

36 In relation to the individual sentences, counsel for AM pointed out that the sentence of 4 years' imprisonment on the charge of false imprisonment was identical to the sentence imposed in Wheeldon v The Queen,[7] a case relied on by the prosecutor on the plea as a comparable case. As to the rape sentences, it was submitted that they were within range and that this was demonstrated by the sentences imposed in the following cases: Mulligan (a pseudonym) v The Queen,[8] Zhao v The Queen[9] and Henson (a pseudonym) v The Queen.[10] (For her part, the Director submitted that guidance as to the appropriate sentencing range was to be found in the following decisions: Director of Public Prosecutions v Jurj,[11] Singh v The Queen,[12] Director of Public Prosecutions v Morris[13] and Samuels (a pseudonym) v The Queen.[14])

37 In relation to the offence the subject of charge 8, this was said to be 'not a particularly serious example' of penile penetration of the vagina. Counsel for A submitted that it should be viewed as materially less serious than an offence involving full vaginal penetration.

38 In answer to questions from the Court, senior counsel for AM accepted the proposition, first enunciated by this Court in Director of Public Prosecutions v DDJ,[15] and later applied in Jurj,[16] that prolonged sexual offending becomes more serious the longer it goes on. In DDJ, the Court said:

The repetition of the sexual abuse is likely to heighten the victim's fear that the abuse will occur again and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.[17]

39 Counsel submitted that the present case was different in view of the evidence indicating that, at points, AM was hallucinating and was disoriented. On the other hand, as counsel properly accepted, the judge made clear findings that AM had acted 'in a distinctly conscious and deliberate fashion throughout' and that he could have been in no doubt that L was constantly begging him to stop.

40 In our view, this was very grave offending indeed. It is unnecessary to repeat the unusual combination of aggravating features, which was clearly described by the judge in his reasons. As we have noted, counsel for AM made no submission to the contrary.

41 The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.

42 In a case like the present, however, both the objective gravity of the offence and the offender's moral culpability are greatly increased. Here, the offender cruelly exploited an innocent and vulnerable victim and, against her protests, raped her repeatedly. Adapting what was said in Jurj, the ignoring of L's obvious distress, and her pleas to him to stop, underlines the torment which AM inflicted on L. He treated her

not as a person deserving of respect but as a chattel, a thing to be used for [his] sexual gratification in whatever way it suited [him].[18]

43 Here, as in that case, the prolongation and repetition make the offending especially serious. For the reasons given in DDJ, AM's culpability in relation to the later rapes should be seen as greater than in relation to the earlier rapes, given his clear awareness of L's ongoing desperation and her horror at the prospect of further sexual abuse.

44 Importantly, as the Chief Crown Prosecutor emphasised, AM pleaded not guilty. He chose to run a trial, as was his right, but as a result was unable to call on any sentencing discount for a plea of guilty or to assert any remorse for what he had done.

45 As to the comparable cases relied on, we have reviewed each of the decisions to which we were referred. In our view, the circumstances in Jurj bear the closest similarity to those of the present case, albeit that this case involved only one offender. There, as here, the offenders had pleaded not guilty to multiple rapes committed during a protracted episode. This Court upheld the Director's appeal and, on resentencing, imposed sentences for the successive rapes of 7 years, 8 years and 6 months and 9 years' imprisonment.

46 In the present case, the sentences of 6 years, and 6 years and 6 months, imposed for the rapes are simply not commensurate with the objective gravity of this offending or with AM's moral culpability. Substantially higher sentences were called for.

47 For these reasons, we will allow the Director's appeal and resentence AM as set out in the table below:

(contrary to s 40(1) of the Crimes Act 1958)

(contrary to s 38(1) of the Crimes Act 1958)

Rape (contrary to s 38(1) of the Crimes Act 1958)

Rape (contrary to s 38(1) of the Crimes Act 1958)

Rape (contrary to s 38(1) of the Crimes Act 1958)

Sex Offenders Registration Order (period of 15 years).

[1] Crimes Act 1958 s 40(1).

[2] Ibid s 38(1).

[3] DPP v Mokhtari [2019] VCC 205, [27]-[32].

[7] [2018] VSCA 344.

[8] [2017] VSCA 94.

[9] [2018] VSCA 267.

[10] [2018] VSCA 283.

[11] [2016] VSCA 57 ('Jurj').

[12] [2011] VSCA 317.

[13] [2015] VSCA 155.

[14] [2018] VSCA 251; [2019] VSCA 14.

[15] (2009) 22 VR 444; [2009] VSCA 115 ('DDJ') (Maxwell P, Vincent and Neave JJA).

[16] [2016] VSCA 57 [91].

[17] DDJ [2009] VSCA 115; (2009) 22 VR 444, 452 [32]; [2009] VSCA 115 (Maxwell P, Vincent and Neave JJA).

[18] [2016] VSCA 57, [83].