DPP v Sinaga [2018] VCC 1122

4. In relation to Charges 5 and 6, the complainant gave evidence that she had sexual intercourse with you without consenting at your home in Clayton on

29 January, but the jury received evidence in the form of a tax invoice and computer records showed you had stayed at the Ibis Hotel on that evening. In relation to Charge 7, on the evidence the jury probably had a reasonable doubt based on the evidence that the complainant may have owed you some money.

5. The prosecution case in relation to the charges of rape in Charges 1 and 3 was that when the complainant had sexual intercourse with you on each of those occasions alleged, she did not give her free consent. The complainant gave evidence that on each of the occasions the subject of Charges 1 and 3, she had sexual intercourse with you because you had threatened to expose the fact she had previously had consensual intercourse with you in Bali. In relation to Charge 3, the complainant gave evidence that at the time she had sexual intercourse with you, she was crying because she did not want to do so. By the jury's verdicts, that evidence must be taken to have been accepted by the jury.
6. The background to your offending is as follows. Both you and the complainant are citizens of Indonesia. In 2015, you were each awarded a scholarship from the Australian Government to come to Australia to study. In October 2015, there was a gathering of the recipients of such scholarships in Bali at which both you and the complainant attended. That is where you met the complainant who was married, and you were and remain, a single person. You got along well together and you both had consensual sex in Bali. The complainant gave evidence that this was the only occasion upon which she freely agreed to have sexual intercourse with you. At one point in time, you took a photograph of the complainant in compromising dress, wearing only her knickers and a t-shirt. The complainant did not know you had taken this photograph of her.
7. After that gathering in Bali ceased, you both returned to your respective homes and the complainant told you that she was married and she no longer wanted to have a relationship with you. You would not take "no" for an answer and you persisted by sending more and more messages to the complainant.
8. In November of 2015, you began to threaten the complainant. You told her that you would distribute the photographs of her to her family and friends and her employer and destroy her reputation. You also told her you had other photographs.
9. In December of 2015, the complainant had to travel from her home to Jakarta to obtain documents for her travel to Australia to study. You had been in contact with the complainant via Facebook and SMS and email and you insisted upon meeting the complainant in Jakarta where you told her that if she did not have sexual intercourse with you, then you would tell her husband and family and her employer that she had a sexual relationship with you in Bali outside of her marriage and threatened to use the photos you had of her and to publish these on Facebook. The plaintiff was in fear that you would carry out your threat and she consented to having sexual intercourse with you in Jakarta, but it was not consent freely given because of your threatening conduct. This evidence was led in the trial as context evidence.
10. Both you and the complainant travelled to Australia in January 2016. You were to study at Monash University and at first, arranged housing in Clayton. The complainant was to study at the University of Melbourne.
11. On the complainant's first day at university, you contacted her and met her at the tram stop at the top of Swanston Street in Carlton. You told the complainant that it was her obligation to meet with you once a week. The complainant felt compelled to go with you to your house in Clayton where you asked her for sex. When the complainant told you that she would not have sex with you, you threatened to tell a mutual friend Amy about your previous sexual relationship in Bali. You attempted to call Amy and because of your threats and under pressure, the complainant had sex with you but she did not freely agree to do so (Charge 1). The complainant gave evidence about what occurred in relation to Charge 1 at transcript pp.84-90, 159-160 and at 262-263. By its verdict, the jury by majority must be taken to have accepted this evidence.
12. Charge 3 is an offence of rape that the prosecution alleged occurred at the Rendezvous Hotel in Flinders Street, Melbourne on 22 January 2016. The complainant said that she agreed to go with you to the hotel after you again threatened her. She said that she only had sexual intercourse with you at the hotel because you had continued to threatened to expose your consensual sexual relationship in Bali to her husband, family and employer. The complainant said that when she had sexual intercourse with you, she was crying. At one point, whilst you penetrated the complainant, you said words to the effect of, "Fuck, this is the first time I'm fucking someone while crying". The complainant did not freely consent to having sexual intercourse with you (Charge 3). The complainant gave evidence about the circumstances surrounding Charge 3 at transcript 91-92, 105-110 and at 115-116. By its verdict, the jury by majority must have accepted this evidence.
13. Save for the circumstances that gave rise to Charges 5 and 6, you admitted having had sexual intercourse with the complainant at relevant times alleged. You denied that sexual intercourse had taken place on 29 January 2016, and as I have already indicated, the jury may have had some doubt about what had occurred on that date. You did not give evidence and in a lengthy record of interview, you told police that every time you had sexual intercourse with the complainant, it was consensual. Your counsel cross examined the complainant at length. The purpose of the cross examination was to have the jury accept her as a liar. By its verdicts, the jury must be been taken to have rejected that attack upon the complainant. The complainant was measured in the evidence she gave and made appropriate concessions and came across as a witness of truth.
14. The prosecution led a great deal of evidence of other misconduct by you, both in the lead up to the offences charged and afterwards. This was to show to the jury the true nature of the relationship that existed between you and the complainant and the context in which the offences occurred. Amongst other evidence, the prosecution led evidence that throughout January 2016 in Melbourne, you constantly threatened to expose the relationship between you and the complainant to the complainant's husband, parents, friends and employer. It also led evidence of repeated communications between you and the complainant on WhatsApp, text messages, and emails in which you continually disparaged and threatened the complainant. It also led evidence of conversations between you and the complainant that the complainant recorded on 25 March 2016. This was damming evidence because it tended to confirm exactly what the complainant was saying about you and gave the lie to your statements in your record of interview that in January of 2016 that your sexual relationship with the complainant was consensual.
15. Your offending is serious. You raped the complainant twice in a period of a week. The complainant did not freely consent to having sexual intercourse with you and only participated in the sexual acts with you because you persistently and repeatedly threatened to harm her by exposing your previous consensual sexual relationship with her. Evidence was led and presumably accepted by the jury that in Indonesian society, if it were exposed that the complainant had been unfaithful to her husband, that would badly damage her standing and reputation in the community in which she lived and also in relation to her employment and career prospects. You knew that to be the case and that is what made your threats of exposure so powerful in the mind of the complainant. You were the one in the position of power. At times, you exercised the power by contacting the complainant's family just to show you could damage the complainant at any time that you chose. I agree with the prosecution submission that your conduct in committing these offences was calculated and premeditated. You planned what you did and did not back off when the complainant told you in clear terms after Bali that whatever brief relationship the two of you had there was over and she was going to remain with her husband. I accept your offending was not associated with physical harm or violence or threats of violence towards the complainant. But even though your offending is absent these features is nevertheless very serious for different reasons. You effectively blackmailed the complainant into having sexual intercourse with you. So effective were you that she felt she had no choice but to succumb to your demands. Your moral culpability for this offending is high.
16. When you offended, you did not wear a condom. I have not seen any evidence of any remorse by you for your offending.
17. I admitted into evidence a victim impact statement from the complainant in which she details how your offending conduct has affected her life. In it, she describes how she feels in clear terms. She describes you as having taken away her worth as a woman and her existence as a human being. The court's experience is that in offending of this kind, the effects of offending can be both profound and long lasting. This case is in that category. In passing sentence, I have taken the victim impact statement into account insofar as it relates to the charges of which you have been convicted.
18. Your counsel, Mr Langton, conceded that your offending was serious and that an immediate custodial sentence was the only disposition appropriate in the sentencing of you.
19. Mr Langton filed with the court a helpful written outline of submissions on your behalf which I marked as Exhibit 1 on the plea. Whilst you cannot be punished for having pleaded not guilty or for running a trial in relation to these matters, you nevertheless cannot expect to receive a reduction in sentence that must follow had you pleaded guilty to the charges.
20. You were born in Indonesia on 23 November 1985. You are now aged 32 years and you were aged 30 at the time of these offences. You have no prior convictions and this offending aside, you have led an unblemished life.
21. You are not a citizen of this country. You are the eldest of four children and come from a hard working family. Your father worked for a logging company and your mother was a school teacher. Your father is said to have deserted the family when you were aged five and he died in 2005. I was told and accept that your mother struggled to bring up the family after your father left. I was also told and accept that there was religious conflict in the province in which you lived between 1999 and 2004. Your family was displaced and you witnessed people dying.
22. You completed a secondary education and a Bachelor of Informatics Engineering at the University of Surabaya. You were a good student, gaining scholarships and you worked as a tutor and a lecturer's assistant. You worked in Indonesia in Information Technology at the Bank of Indonesian People. Your work involved monitoring the bank's I.T systems and solving hardware and software problems. You also worked as a teacher at a high school for a few months before gaining work in another bank in your home province. At the time of this offending, you had commenced a two year course for a Masters Degree in Information Technology at Monash University. You are, I think, a well-educated and intelligent man who has worked and studied hard to advance yourself and try as hard as you can to support your family at home in Indonesia. I was told and accept that whilst a student here in Australia, you were sending $1,000 per month home to support your family.
23. When you came to Australia to study, you came here on a student visa, but that was cancelled after your arrest on 17 January 2017, on which date you were taken into immigration detention. I remanded you in custody on the date of your conviction. You have thus served 53 days pre-sentence detention in custody. However, you were in immigration detention as I have said from

17 January 2017, including during the trial, so that you were in immigration detention for 500 days which included 11 months at Christmas Island off the coast of Western Australia. Doubtless you had few or no visitors during that time and your liberty and freedom of movement were curtailed. In addition, you had the fact of these charges hanging over your head during that time and you were unable to get on with your life in any meaningful way. Mr Langton asked me to take all of this into account in accordance with the principles expressed by the Court of Appeal in Underwood (a pseudonym) v The Queen (No 2) [2018] VSCA 87. In fixing the total effective head sentence and the non-parole period, I have taken into account the time that you have spent in immigration detention. Had it not been for the fact you have spent so much time in immigration detention because of these charges and awaiting trial, I would have fixed a head sentence of six years' imprisonment and I would have fixed a non-parole period of four years.

24. Mr Langton submitted that because your student visa has been cancelled (Exhibit 2), it is highly likely, if not inevitable, that you will be deported upon your release from prison. He asked me to take this factor into account in accordance with the principles again referred to by the Court of Appeal in Guden v The Queen [2010] VSCA 196. In passing sentence, I have had regard to this fact. In your case, you are the only member of your family to have come here and you mother and siblings reside in Indonesia, so you will likely return to them. You will be unlikely to have many visitors whilst in custody. What you have probably lost is the prospect of at some future time, being able to apply for residency status in this country which as I understand it, you aspired to. In passing sentence, I have taken all of this into account.
25. You have studied in the field of information technology. I accept that the time that you have spent away from your work and study to date and in the future whilst you are in custody, will have a deleterious effect upon your future career prospects. That is because technology in this field changes and advances quickly. All the time that you are away from this work means that your knowledge is diminished and others able to work in the field will likely go past you. As Mr Langton put it, when you return to I.T, you may be seen as somewhat of a dinosaur. I have taken this circumstance into account.
26. I heard evidence from Mr Richard Read, a friend who accommodated you whilst you were studying. He gave favourable evidence which I accept as to your character as a student and the way you applied yourself to your studies and assimilated with his family whilst you rented from him. I also received into evidence a references, each of which spoke favourably of you. In passing sentence, I have taken all of this evidence into account.
27. In offending of this kind, the sentence imposed must appropriately apply the sentencing principle of general deterrence, that is to say the sentence imposed must serve to deter others who might seek to offend as you have. Further, the sentence imposed must appropriately serve to denounce your offending, but importantly, must impart just punishment. In arriving at a sentence, I must also have regard to your rehabilitation. I very much doubt that you will again offend in this way and I regard your prospects for rehabilitation as being reasonably good. Nevertheless, I recommend that you undergo the Sex Offenders Program whilst in custody.
28. Could you please stand, Mr Sinaga.
29. On Charge 1, rape, you are convicted and sentenced to a term of imprisonment of four years.
30. On Charge 3, rape, you are convicted and sentenced to a term of imprisonment of four years.
31. I direct that one year of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 3, making a total effective sentence of

32. I direct that you serve a minimum term of two and a half years' imprisonment before being eligible for release on parole.
33. I declare that there has been 53 days presentence detention and that 53 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and be deducted administratively.
34. The prosecution sought the making of a forensic sample order and that application was not opposed by your counsel. Having regard to the serious nature of your offending and because I consider it to be in the interest of justice to do so, I have made an order that a forensics sample be taken from your body and the reasons for my doing so are set out in the order itself. Having made that order, you need to understand that whilst in prison, you may be approached by a member of the police force and asked to furnish a forensic sample from your body in the form of a swab taken from your mouth. If you refuse to furnish such a sample, the police member may use reasonable force to take the sample.
35. The prosecution also seek the making of a forfeiture order relating to a telephone. The making of that order was not opposed and I have signed the order.
36. MR LANGTON: As Your Honour pleases.
37. MS MARGARONIS: As Your Honour pleases.
38. HIS HONOUR: Yes, could you take Mr Sinaga into custody please. Adjourn till 10.30.