DPP v Samuels

1. The jury verdicts were founded on the evidence they observed in the trial. It is futile my endeavouring to descend to the full evidence given at the trial. The prosecution summary of opening isolates the broad facts of the charges for which you were convicted, that is, Charges 3 to 5. The jury was clearly satisfied of those allegations beyond reasonable doubt. The victim was your wife of many years. The acts occurred in 2015. You had been married since 1995 and despite your claim as to a state of marital happiness and harmony, that of course was not the reality. I am satisfied of that beyond reasonable doubt.
2. Your counsel had placed before the jury, photographs taken on cruises in 2015 and 2016 and at other occasions, as demonstrating how happy you were as a family and as a couple, how the smiling images were inconsistent with the allegations levelled against you. It ignored the fact that your wife had, by the time of the 2016 cruise, already complained to your daughter and to her doctor of being raped by you. She had consulted her doctor for anal pain, arising from the act the subject of Charge 4.
3. Your daughter was herself a significant witness in relation to Charge 3 on the indictment, where she overheard her mother screaming out for you to stop, heard banging coming from the room and then saw her mother exit the bedroom in a distressed state, with marks on her body and complaining moments later of having been raped. It is plain from the evidence led at trial that the relationship had been far from happy for many years. It is plain also that your wife had a strong dislike for anal sex, with objections based on religious and communal beliefs. She had raised them with you. She had never consented to any such act. It is also clear to me and I am satisfied of this beyond reasonable doubt, that you felt a sense of ownership over your wife.
4. There was an unusual shift in this case. When your wife was cross examined, it was suggested, on your instructions, that whilst she was not particularly enthusiastic, she was at least prepared to consent to anal sex, that you were the instigator of those acts and she essentially "suffered" them, but in circumstances where she consented. She totally rejected your counsel's puttage in that respect.
5. You chose to give evidence. Once you hit the witness box, that all changed. You asserted that she was keen indeed for anal sex, but that you were not and that you declined. At another point you said that there was no anal sex. At other points in your evidence, you suggested that anal sex was physically impossible, owing to the small size of your penis and you invited a medical examination. All of this, of course, after she had left the witness box with none of these propositions having been put to her at all. Your evidence was disastrous.
6. You wife, on the other hand, was credible and more to the point, accepted by the jury in relation to Charges 3 to 5. The evidence discloses that Charge 3 involved her protesting and pleading with you to stop. She was crying throughout the forced anal penetration that ensued and begging you to stop. She was in a distressed condition once she emerged from the bedroom. Your daughter had overheard her mother scream "stop, stop, please stop", heard the banging from the bedroom and then received a timely complaint within minutes and also saw signs of recent injury. See the Trial Transcript ("TT") at p.274 and 453.
7. Charge 4 was a similar event, with manhandling of her by the hair, slapping her, then forced anal penetration in the bedroom, ignoring her pleas and protests and crying throughout the event and with pain occasioned on that occasion. You put a hand over her mouth to stop her screams. See TT pages 271-272.
8. There was an anal injury. She attended upon her doctor and complained to her doctor, who suggested counselling. When she mentioned to you that she would get counselling, you then threatened to kill her and to make it look like suicide. She believed you were capable of carrying out the threat. See TT p. 272. That forms the basis of Charge 5, the threat to kill.
9. This was extremely serious offending against your wife. It is plain from the materials placed before the jury, that you were possessive and jealous and suspected her of having affairs. She had not. Additionally you knew that she had a very strong aversion to anal sex, that she abhorred it, and that there was a religious taboo. Yet you compelled these acts, taking her by force and in the midst of her pleas and protests in the family home and on one occasion, with your own daughter in close proximity.
10. You denied all of the offences upon police interview. As I say, you gave evidence at trial and it was something of a debacle, as you changed accounts midstream. You were an evasive witness. The jury was clearly satisfied beyond reasonable doubt that these two rapes and the threat to kill occurred and they found you guilty of them.

1. Your counsel, Mr Crisp, who did not conduct the trial, conducted a plea on your behalf. He filed some written submissions marked as Exhibit 1, as well as three reports, some medical records and a large bundle of personal references. He called evidence from your cousin, who had also given some character evidence at trial. There were, in truth, very few matters in mitigation raised on the plea. Mr Crisp relied mainly upon:
   • The absence of any past relevant criminal acts;
   • The suggestion of an increased burden in prison, owing to a combination of factors referred to in the expert materials;
   • He took me to your background in some detail, including your strong work record and absence of any criminal history;
   • He argued that you had some prospects of rehabilitation and that it was your first time in custody;
   • He made some submissions about the offences and the absence of some features of aggravation, including extreme violence, but he conceded the seriousness of your offending and the inevitability of

terms of imprisonment. He ultimately conceded that there would be necessarily a level of cumulation, with a total effective sentence of a dimension requiring the fixing of a non-parole period.

1. The prosecution submitted that this was very serious offending, involving serious sexual acts committed with a level of force and in a setting where your wife had flagged her strong opposition to anal sex. They placed before me a case with some similarities, the case of Johns [2016] VSCA 97. I note the fact of appellate intervention in that case and the ultimate sentences employed. The prosecution referred to the uncharged act material placed before the jury. I see no need to act on any of that material. It is not necessary for me to determine that issue. I am certainly satisfied beyond reasonable doubt that the relationship was not the happy relationship that you have described in your interview and in your evidence.

1. There are three victim impact statements. One of these is from your direct victim, your ex-wife, one is a report from her psychologist, and there is also a victim impact statement from your own daughter. There was no dispute as to this material, though I raised an aspect of the daughter's victim impact statement with Mr Crisp and indicated I would not act on references to alleged threats to her.
2. I see no need to restate all the impact material here. There is nothing at all surprising about any of the sentiments raised in any of those documents. Your wife felt ashamed and humiliated. She feels judged and is frightened. She is haunted by the memories of what you did. Her sleep has suffered. Her trust in others has been eroded. She feels unworthy and a failure. Her self-esteem has taken a massive blow. There has been financial loss and loss of income. You have caused very significant damage to your ex-wife, as well as to your own daughter. This was dreadful offending.
3. I do take into account the impact of your crimes. It has been profound and continuing.

1. I will deal briefly with your background. Why briefly? Well, I have no reason not to accept your personal historical background and none of it provides any explanation for this offending. You are the 53 years of age, born on 16 April 1965 in Cairo in Egypt. You were the oldest of three boys and you had a normal, happy childhood. The family moved to Khartoum in Sudan and this was to assist with your father's state of health. You were and you remain a member of the Christian Coptic church. You returned to Egypt after some six years in Sudan and then finished Year 12 and went to university. You obtained a Commerce degree.
2. You married in Egypt in 1995 and emigrated as a family to this country in 2009. There are two children of the marriage, a 21 year old daughter and 17 year old son. I do accept that your wife came from a more affluent background and this caused some stresses in married life. You worked in Egypt in a hotel, initially in reception, before moving into administration and you stayed at that hotel for some 19 years. You also studied part-time and you obtained an IT qualification. In Australia, you worked for many years at the local Coptic Church school. You have had a full employment history.
3. There is a large bundle of character material that has been placed before me, as well as evidence led from your cousin. I have read all of that material again since the plea. Now I accept that your conduct is viewed by all of those who have written such references, as being out of character. Some, however, go one step further and they express opinions as to the improbability of the acts having occurred and the unrealistic claims made by your ex-wife. They set out their disbelief of her on that score.
4. Those aspects of the references are of no assistance to me at all. These acts occurred. Nor am I greatly assisted by claims as to the nature of the relationship as to how idyllic it was. It flies in the face of the evidence placed before the jury. I am not dismissive of the authors, rather it perhaps demonstrates that it is very hard to ever really know the ins and outs of other people's personal relationships. There can be a difference between the private and the public face of a relationship. Your cousin, for instance, came to Australia in 2004, you in 2009 and she had not actually seen you in this country until after the allegations were made. Her account of observing your interactions with your wife therefore necessarily dated to times in Cairo before her emigration in 2004. She had no ability to view the relationship beyond that point.
5. As to many of the other authors of those references, well again it demonstrates the differences that may play out away from the family home, when under the gaze of others. Still I act on the basis that these sexual acts were out of character and that others have seen you in the past, engage appropriately with women.
6. There is some medical material that has been placed before me, which is unnecessary to analyse in great detail. The physical issues, vertigo and a fall leading to leg fractures, are not relied upon as increasing your custodial burden. It is a fact though that you have had those issues culminating in a serious injury in November 2017. I am not suggesting they were minor issues. They were not.
7. In addition there is the psychiatric material placed before me. I accept that there have been some issues with anxiety and depression. Now there is a report from a GP, Dr Tosson, as well as a report from Dr Ibrahim and from Dr Jager. The later two are psychiatrists. There are some unfortunate aspects of the psychiatric material placed before me. Dr Ibrahim was seeing you on a

pro-bono basis, through your mutual association with the church. He acted on your report to him and much of that related, of course, to your report of your wife being, as you put it, sneaky and abusive and manipulative. The degeneration in your mental health was linked to the alteration in your life flowing from the disclosures and all of this because of your wife's misbehaviour, or so you reported to him.

8. As to Dr Jager, he was a consultant and strangely, a plain reading of his report might suggest that he does not even know whether you have been found guilty or not. Mr Crisp says that is not the position and I act on that assurance. However, Dr Jager says at one point in the report, "Should the court find you guilty of the offences". It is a bizarre report, based as it is, on the stated assumption that none of the proven acts took place. Based also on a single meeting, not a meeting in person regrettably, but 65 minutes over a video-link and a video-link which failed without him even raising a number of matters with you that he wanted to raise. It is most unsatisfactory.
9. As I read the materials, your deteriorating mental health state is very much rooted in your reaction to these events and the process of being charged and tried and now imprisoned. That and the reaction to alterations in your personal life with separation from your wife and children. There is no suggestion made that any of the matters spoken of explain your offending, or in any way reduce your culpability or the need to reflect general or specific deterrence. Purely they were relied upon as suggesting some increase in your custodial burden. In particular, the diagnosis of a chronic adjustment disorder spoken of by Dr Jager.
10. You have no prior convictions and only that one subsequent matter, which I have already mentioned and which has no relevance to my task.
11. You have lost a lot owing to your actions, but really that is hardly surprising. Loss of contact with your family, the house being sold, new lives being forged without you, assets being broken up. Well of course it is sad, but it is not surprising. It is what happens.
12. I accept that it cannot be easy being in prison for the first time at your age and I accept that there has been a massive alteration in your life flowing from these matters coming to light. Your life is very, very different. Your mental health has been compromised, to a degree, in reaction to the whole process. You have made some attempts to take your life.
13. Your counsel suggests that owing to the mental health issues spoken of, there is an increased custodial burden. I am prepared to give the 5th limb of the case of Verdins some modest weight here.

1. I turn now to your prospects of rehabilitation. You have a very good work history and no relevant past criminal offending. Counsel suggested that you have the capacity to rehabilitate.
2. Well, you have no past offending, but this offending was extremely serious. It was not a question of misinterpreting signals from your wife or some recklessness at play here. I am satisfied beyond reasonable doubt that you knew your wife was not consenting to these sexual acts and yet you chose to possess her, as you believed was your right. You were exercising dominion over her body. Well it was not your right. In fact, whether married or not, it was her right to not consent, which is exactly what she directly and explicitly conveyed to you. You did not care and you determined to rape her. You used physical force.
3. The style of penetration was one of which you knew she was particularly ashamed, it being something of a taboo in her and your own world. You deny the offending and there is nothing in the expert reports assisting me as to future risk. Indeed, as I have already conveyed, the report of Dr Jager is curious, to say the least, in that it provides an opinion as to a level of risk, but bases that assessment on the assumption that you are not guilty of any these offences. That is a puzzling approach and an assessment that plainly has no validity at all. You are guilty of these offences, though you still deny them and he,

Dr Jager, for whatever reason, ignores a finding of guilt. True it is though that there is no history at all and nothing suggesting any sexual or psychotic disorder at play.

4. The sentence I will impose will have some deterrent impact on you. It is, at this stage, impossible for me to assess your true level of risk, but plainly enough, you have a risk of re-offence. I am not suggesting there is any material suggestive of some broader danger to members of the public. The risk will be posed to any woman entering a relationship with you. As I have said I am satisfied beyond reasonable doubt that there was an air of your exercising dominion over your wife and taking advantage of the relationship. You felt that you could do as you liked with her and you did. That presents the true risk in the future, that is, a risk to people coming into your intimate sphere. It is very hard for me to assess the level of that risk currently.
5. I am prepared though to find that you do have reasonable prospects of rehabilitation. Hopefully treatment in the future will reduce you level of risk.

1. Your counsel conceded that you would fall to be sentenced as a serious sexual offender by the time of the third sentence imposed by this court. There is, from that point, a presumption of cumulation, rather than concurrency and community protection is the principal purpose of sentencing for the charge, for which you are to be sentenced as a serious sexual offender.
2. The common law principles, unaffected by the serious offender provisions, would not dictate total concurrency in a case such as this. If

Mr Crisp was suggesting total concurrency, as I think he was at one point, well that submission could not be accepted. In support of the submission, he said that the acts were with the same victim. Well they were, your wife and each sexual offence was a serious offence and they were not occurring on the same day. They were not part of a single criminal episode. Not at all. They were months apart.

3. The two individual sexual acts were very serious criminal offences committed upon your wife. Each individual sexual act would undoubtedly have a role to play in the overall impact upon her, as spoken of in the victim impact material. The threat to kill was also serious. I must not ignore the clear legislative provision set out in the Sentencing Act that directs cumulation, unless otherwise directed, in relation to the third sentence imposed. See s.6E of the Sentencing Act. Totality of sentence still applies though, but with this statutory modification.
4. I make clear that for the third sentence where you will fall to be sentenced as a serious sexual offender, I will pass a proportionate sentence. Mr Stougiannos did not suggest that there was any need or basis to consider passing a disproportionate sentence under s.6D(b) and of course I will not.

1. I must take into account current sentencing practices. However, it is only one of a large number of matters that I must consider. It is not a controlling factor.
2. I was directed by the prosecutor to a case with some similarities, the case of Johns [2016] VSCA 97. I note that that case predated the High Court decision in the case of Dalgleish. Now the prosecutor was not suggesting that the case of Johns was on all fours. It was not. There is nothing in that case operative by way of precedent. Other sentences are not precedents. It is an example of another court (in that case the Court of Appeal) passing sentence for serious sexual offences committed in the course of a marriage. In that case there was also a sizeable delay during which there was some evidence of rehabilitation.

I note paragraph 33 in that decision as having a similar theme to the setting of the crimes for which I must pass sentence, namely a husband exercising dominion, treating his wife as property. The court of Appeal commented on the abhorrence of such a view and that it could not be tolerated by the Courts.

3. The fact is, no case is ever identical. There is always a limitation in looking at other cases.
4. There is also always a real limitation in looking at statistical data. That data says nothing as to the nature of the offending or the matters in aggravation or mitigation, or even whether there was a trial or plea. I have looked at the

up-to-date online SACStat materials for rape and for threat to kill. I have looked at the Snapshot 207 of 2017 for the crime of rape from the Sentencing Advisory Council, relating to the data ending in the period 2015/16. Also to the Sentencing Advisory Council snapshot for threat to kill, Snapshot 174 of 2015. I observe though that most matters coming to this court result in a guilty plea. That must flow into that and the other data. I have also looked at the Judicial College of Victoria overviews for the sentences passed for the crime of rape (31.11.1.1) and also the threat summaries (30.9.5.1).

5. The SACStat data for rape discloses a not insignificant proportion of offences being dealt with by sentences of seven years and above.
6. These offences for which I am passing sentence follow a trial. You have no remorse at all for this offending and as I will detail in one moment, the rapes had a number of serious features, some of which I have already referred to.
7. I have to exercise a sentencing discretion, as a judge, in relation to these three crimes. I must take into account a large range of factors, including the maximum penalty and the impact of the crimes. Also the nature and the gravity of the offence.
8. On that score, as to the two rapes, they were, in my view, very serious sexual offences committed upon a woman. That woman was your wife. She was raped in her home. You probably had a duty or a moral obligation at least to protect her. Instead you chose to rape her. You knew that she was not consenting and I am satisfied of that beyond reasonable doubt. So two charges of anal rape in her own home, each with force, each in the face of her pleas and protests and in the face of her crying. Completed acts of anal penetration to ejaculation. Signs of recent injury on one occasion, an anal injury on the other occasion and pain on each. One occurring when your own daughter was within the house. An act on each occasion which you knew very well was abhorrent to her. The threat to kill was also extremely serious. It was a threat to kill and it was obviously designed to cease her contact with a doctor or counsellor.
9. I accept that one can almost always envisage more serious cases. Your counsel spoke of the absence of, as he put it, "extreme violence" or weapons. Well that sort of submission downplays the inherent violence of an act of rape, but I suppose he was referring to other cases where there was additional extreme violence, over and above the rape itself. Well I accept that there are some matters of aggravation which are lacking, but that sort of submission can distract from an assessment of the true gravity of the offending before the court.
10. There are plenty enough matters of aggravation present here, as I have listed a moment ago. Undoubtedly these three charges involved very serious offending with the sizeable impacts spoken of. There are a great many cases in the Court of Appeal speaking as to the inherent seriousness of these sorts of crimes. The Court of Appeal has spoken loudly, frequently and for that matter, recently as to the seriousness of sexual crimes committed upon women, of the high rate of domestic violence in this State. There is nothing mitigatory in these acts occurring in the course of a relationship.
11. The Court of Appeal has also, by the way, queried recently the usefulness of attempting to categorise offences into some spectrum. See the case of Weybury [2018] VSCA 120.
12. You must be punished for your conduct, though my obligation is to do that justly and proportionately.
13. This court must also denounce this serious offending. That is a significant purpose of sentencing and I do denounce your conduct. You really should be very much ashamed of yourself. Of course you are not. Not at all.
14. I need to deter you from offending in the future. You must be deterred. You must be dissuaded from ever contemplating committing these sorts of crimes in the years ahead. You present a risk and as I have said, it is impossible for me to quantify it. But given your age, it is reasonable to think that you will seek out some form of intimate relationship in the future. You must understand that an intimate partner is not your property. It is not your right to force your sexual wishes upon another. You must be deterred in the future.
15. I have to take into account your prospects of rehabilitation. I can only be relatively guarded at this stage. I am really not assisted by Dr Jager's views. But as I have said, I believe you have some reasonable prospects of rehabilitation.
16. I must also pay regard to the need to protect the community from you. That is a sentencing purpose here that I cannot ignore. Indeed that purpose is elevated as the primary purpose for the third sentence imposed by the court.
17. I must pay very strong regard to the principle of general deterrence in this case. By general deterrence, I mean this court's obligation to send a loud and clear message to other people in the community that offending such as yours will simply not be tolerated. Repeatedly our highest court in this State, the Court of Appeal, has spoken of the seriousness of sexual crimes committed upon women.
18. You have none of the sentencing benefits that often enough would apply to many of those covered by any of the statistical data I have referred to. For instance, a person who demonstrates remorse and who pleads guilty and at an early stage. Those benefits are very sizeable indeed in these sorts of cases, as they clearly should be, but of course they have no application here at all. You have chosen to run a trial. It was your right to do that and you are not to be punished for exercising that right, but it follows that there are a number of large mitigatory matters that often enough apply in other cases that simply have no application at all in your case.
19. Your offending was extremely serious. It demands a very substantial term of imprisonment on each charge, with appropriate levels of cumulation. I have no choice at all but to pass terms of imprisonment upon you. That is conceded to be the position by your counsel.

1. Application is made for you to undergo a forensic procedure for the taking of a sample, pursuant to the provisions of the Crimes Act. It is not opposed and I have signed that order. Pursuant to the relevant provision of the Crimes Act, I direct that you undergo a forensic procedure for the taking of a scraping from your mouth, in accordance with the relevant provisions, until a sample of sufficient standard is obtained for placement on the database.
2. I am satisfied that the making of this order is justified, owing to the seriousness of the offending, the fact that the order is by consent and that it is in the public interest.
3. What this deals with, Mr Samuels, is the requirement to undergo a mouth swab in custody. It is not a particularly invasive procedure, but notwithstanding your present consent to the order, at the time when the authorities come to take the sample, they can use reasonable force to take that procedure. I have only authorised, at this point, a scraping from your mouth. I have not authorised a blood sample, because my judgment is, I should authorise the least invasive procedure. So I have signed that order.

1. I move then now to pass sentence. I will have a document come down to the interpreter.
2. I move now then to pass sentence.
3. On Charge 3 rape, I convict and sentence you eight years' imprisonment. That is the base sentence.
4. On Charge 4, rape, I convict and sentence you to eight years' imprisonment
5. You fall to be sentenced as a serious sexual offender on the remaining offence. On Charge 5, threat to kill, I convict and sentence you to two years' imprisonment.

1. I direct that two years of the sentence imposed on Charge 4 will be served cumulatively upon the base and other part cumulative sentences.

Otherwise direct concurrency; s.6E; sentence on charge 5. Totality

1. As I have said, I have sentenced you as a serious sexual offender in relation only to the final charge (Charge 5). Under the Serious Offender regime, unless I otherwise direct, the sentence passed upon you on that charge would be served cumulatively or consecutively upon the other sentences and that is by virtue of s.6E of the Sentencing Act 1991.
2. Whilst I must give some weight to that provision, I must and do still pay regard to the principle of totality. It is modified, but still highly relevant.
3. I have given consideration to the overall effect of the sentences imposed by me and the extent of my cumulation and concurrency orders and I have engaged in a last look at the overall effect, in an endeavour to avoid the imposition of

a sentence that might be described as crushing upon you and to ensure that the outcome is in line with your overall criminality. Your criminality was high.

4. I direct that 18 months of the sentence imposed on Charge 5 is to be served concurrently upon the base and part cumulative terms. That adds, therefore, a period of six months to the other orders.

1. These various orders produce a total effective sentence of 126 months' or ten and a half years' imprisonment.
2. I fix a period of 93 months, or seven years and nine months during which you will not be eligible for release on parole.
3. You can have a seat please.

Section 18

1. You have been in custody since verdict, which is a period of 82 days. That period of pre-sentence detention, which has been served already, is to be noted in the records of the court.

1. I have sentenced you as a serious sexual offender in relation to the sentence imposed on Charge 5. That fact is also to be noted in the records of the court.
2. Have a seat.
3. Now, are there any other matters I need to deal with at all, Mr Stougiannos or Mr Parsons?
4. MR STOUGIANNOS: No, I think Your Honour's covered them.
5. HIS HONOUR: I am sorry to have moved from cumulation to concurrency, but I am following the scheme of the Act. Do each of you follow the terms? They are pretty straightforward. It is eight years on Charge 3, which is the base, eight years on Charge 4, two years of that cumulative upon the base, which reaches ten years. I have passed a two year term on the threat to kill and I have then pronounced the extent of concurrency, 18 months of that is concurrent. So that adds six months to the others, which gets to ten and a half years.
6. MR STOUGIANNOS: Yes.
7. HIS HONOUR: With the non-parole period of seven years and nine months. Do you each follow that?
8. MR PARSONS: I follow that, Your Honour.
9. HIS HONOUR: Yes, all right.
10. MR STOUGIANNOS: I do, Your Honour, thank you.
11. HIS HONOUR: Are there any other matters that I need to deal with?
12. MR STOUGIANNOS: No, sir.
13. MR PARSONS: Nothing further from me, Your Honour.
14. HIS HONOUR: Yes, all right. Well look, I have signed the order. Then you will go and see your client downstairs, Mr Parsons?
15. MR PARSONS: Very well.
16. HIS HONOUR: Yes, all right. Well, I would like to thank the interpreter,

Ms Erian, for the efforts that you have put in over the course of the trial and the plea, so thank you very much.

17. INTERPRETER: Thank you, Your Honour.
18. HIS HONOUR: Mr Samuels can now be removed, thank you.
19. MR PARSONS: Your Honour, could I take a brief moment to speak to my client now, or - - -
20. HIS HONOUR: No.
21. MR PARSONS: Very well.
22. HIS HONOUR: No, you can see him downstairs. I have got a trial waiting in the wings.
23. MR PARSONS: Apologies, Your Honour, thank you.
24. HIS HONOUR: Yes, I will come back onto the Bench at 11 o'clock.