STATE OF TASMANIA v SAMUEL EDWARD CHORAZIAK 11 AUGUST 2022
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Choraziak, the defendant, has been found guilty of three counts of rape by digital penetration and one count of indecent assault. These crimes arose out of the one incident on 15 February 2020, the complainant being [a female who I will call A]. The facts as I find them to be are as follows. On the evening of 14 February, the complainant went to a restaurant and then to a night club. The defendant was there. The theme of the evening at the club related to a particular style of music and involved people dressing in a certain style. Both persons were dressed accordingly. The defendant and A danced together, talked and drank. Before this A had known of the defendant by his nickname but did not know him personally. When the venue closed people gathered outside. It was learnt that a number of people were going to the defendant’s house to continue the night and A asked him if they could go. He agreed. At this time the complainant was with her friend, S. At the house people gathered in different locations. There was singing and dancing to a music video in the lounge room. The defendant and the complainant danced closely together, and talked. After a time, only a few people were left in the room, the defendant, A and S among them. The complainant was sitting in an armchair and the defendant knelt in front of her. There is a dispute about the order in which things next happened. I generally prefer S’s evidence to that of the complainant. The complainant said the defendant put his hand around her throat, called her a “fucking whore”, used a lot of profanity and started kissing her. She felt intimidated and fearful. S said that she was sitting on a separate chair next to the defendant and A. They were kissing. The defendant started to say “horrible things” like calling the complainant a slut and a disgrace, which made S uncomfortable. S saw the defendant with his hand around the complainant’s throat, put herself between the pair and asked the complainant if this was what she wanted; was she okay with it. The complainant said that when S asked her if it was okay, she just nodded very slightly, and did not give any sort of enthusiastic response. However, I prefer S’s evidence that the complainant actually replied “yes”. The defendant’s evidence was also to that effect. S then left the room. During the abuse, and before S intervened, the defendant indicated that he wanted to have sex with the complainant. After S and the man she was with left the room, the defendant grabbed A by a knot or bob in her hair and by that means got her to a standing position and manoeuvred her into a nearby bedroom. He then pushed her by the shoulders so that she was laying backwards on the bed, lifted up her dress and removed her underwear. He told her to put her legs up but after she did not he became quite aggravated. He called her a “stupid bitch” and slapped her across the face. She obeyed his directions on how to hold her legs. Afterwards the defendant put his hand on her throat and squeezed sufficiently hard so that the complainant felt pressure in her face. She said that she was frozen and very scared. Amidst further abuse, he put his fingers in her vagina; she felt he started with one and moved up to four. She told him that it hurt and she was not enjoying herself. He said that he wanted her to suffer. As a reflex action because it was hurting, she used her foot against his chest to push him away. He fell off the bed but got up, abused her again and put further pressure on her neck. The defendant then used his fingers to penetrate her again. He inserted one or two fingers into her anus and one or two fingers into her vagina. She told him that it was hurting, she did not want it and asked him to stop. However, he then proceeded to put his mouth on her vagina and performed oral sex for a few minutes. It ended quite abruptly when he got off the bed and stood up. He told her that she could go, at which point she asked for her underwear back but the defendant refused, saying – amidst more personal abuse – that she had to go out without them. When she went back out, S was there in the living room. S noticed an immediate change in the complainant. She said the defendant came out first shirtless, with the complainant following who, she said, “didn’t look like [complainant] anymore”. She said her eyes were really blank as though her friend “wasn’t in there”, and that something had happened. The complainant locked eyes with her which alerted her that something was wrong. At this point the complainant was sitting close to the defendant. He suggested she kiss a friend of hers, which she eventually did reluctantly before leaving. S grabbed the complainant and the complainant’s jacket and ran out of the lounge and out on to the street. By this stage it was close to 9.00am. The complainant was screaming and hyperventilating, saying that the defendant had hit her and hurt her. They were then driven home. To the people in the car she complained that the defendant would not let her keep her pants on, that he would not stop hitting her. She was seen to be extremely distressed. In a phone call to a male friend, later her partner, she complained that she wanted him, the defendant, to stop. Later in the afternoon when her sister saw her, the complainant was struggling to breath and hyperventilating to a degree. She was reluctant to engage in conversation, to eat anything and was generally curled up in a foetal position for quite a lot of the time. In terms of the defendant’s culpability, I cannot be satisfied beyond reasonable doubt as to the first count of digital penetration of the vagina, or at least for the initial part of that act, that he was not acting under an honest but unreasonable mistaken belief that she was consenting. This view is reasonably open because the defendant and the complainant were parties to a group conversation in which sexual preferences were discussed, with the defendant expressing a preference for “rough sex”. Dominance and submissiveness were also mentioned in the conversation. It is reasonably possible that although the complainant contributed little to this discussion, the defendant misunderstood her attitude. The complainant told the examining doctor, and agreed in evidence, that up until the point things became nasty and violent just before going to the bedroom, she had made up her mind that she was happy to go on to have sexual intercourse with him. Obviously, the jury was satisfied beyond reasonable doubt that as to the first count the complainant was not in fact consenting. But there is no evidence that before the act of penetration she had told him that she did not want to do anything. It is not at all clear when she did make that obvious to him in relation to that first count. After that, however, things take on a completely different perspective. I am satisfied that from that point the complainant made it abundantly plain to him that she did not want to engage in sexual activity with him. I should add that on the defendant’s version a much more extended session of the same type of sexual activities complained of took place, with the complainant clearly indicating her agreement and at times urging him on to the extent that, he said, she climaxed three times. He said the abuse was part of dominant/submissive role play, and that the throat grabbing moves were to heighten sexual pleasure. I am satisfied that after the first count he must have known that she was not consenting. However, later the same day, he sent the complainant a message saying “Let’s do that again”. This might suggest a complete lack of insight into his conduct. If it is the case that he was completely oblivious to what she was saying and doing, the degree of recklessness is so high as to make little appreciable difference.
The medical examination of the complainant revealed soreness to the neck, head, right hip and vaginal area. The tenderness to the neck was said to be commonly due to a hand gripping the front of the neck although, in this case, there was no visible bruising. There were multiple bruises on her legs and on the right buttock, with a tender slightly swollen area on the upper arm, typical of being grabbed, and not in a location typically arising from hitting into things. There were two abrasions on the vulva area, one on the back of the entrance to the vagina and one on the inside of the left side of the vagina, along with two superficial splits in full thickness through the anal skin. I have a victim impact statement from the complainant, dated 1 August 2022. Previously, the complainant had been diagnosed with a number of mental health issues including PTSD. Since the incident, she has said she has suffered multiple setbacks in progress in relation to these issues. A severe increase in anxiety has made it common for her to be unable to leave the house unaccompanied. She has panic attacks in public and in private. She feels the depression has been worsened, resulting in suicidal ideation, self-harm, feelings of hopelessness and alcohol abuse. Her anti-depressant medication was doubled; that in itself has caused issues. She has visual flashbacks, hallucinations and intrusive thoughts. She has struggled to maintain employment and to study to gain qualifications. She lost her employment months after the incident, the reason given to her was a change in demeanour, lack of energy and decline in reliability. Her interpersonal relationships have been adversely affected with her family and partner needing to provide care to her during times of distress.
The defendant was 32 years old at the time; now 34. He has no recorded history of any nature. He was born and spent much of his life in Tasmania. He obtained qualifications in hospitality and audio/broadcasting and worked in both those areas, one during the day and at night, for a considerable time. At the time of this incident, he was completely committed to caring for his unwell mother and allowed himself one day a fortnight for recreation. The 14 February 2020 was one such day, although it is not suggested that was a contributing factor to what happened. His mother died after the charges were laid and shortly after he moved to Victoria. Before he did so, he acted responsibly in relation to his bail obligations and in relation to possible contact with the complainant. They had mutual friends. He avoided going to venues where he thought she might go. Some of her friends seem to have taken out their anger at him and he was assaulted on three occasions, including being punched to the face on one occasion, and kicked down a set of stairs on another. He has been treated for depression and anxiety, and that continues. In 2019 as well as his mother, a significant number of friends died. This was a very difficult period for him. One was also an acquaintance of the complainant and he avoided being in her vicinity at the funeral, and stayed away from the wake until she had gone. As a result of the charges, a number of friends have abandoned him. Since being in Victoria he has assumed the role of primary carer of an elderly disabled veteran. This is a full time role involving a high level of care and strict attention to the medication regime. That person is estranged from his family and the defendant is his only friend. Although the bare essentials of the care can be replaced, the situation will not be satisfactory and the accused is most distressed about being unable to continue in his role, that distress being plainly evident to me in court when the issue was being spoken of.
In 2017, the law of rape was amended to include penetration involving body parts other than the penis. Previously, digital penetration was an aggravated sexual assault. The obvious intention of the amendment was to indicate that all forms of non-consensual penetrative sexual crimes were “equally serious”. And so digital penetration without consent as a form of bodily invasion is a serious matter. It can be said that it does not carry with it the risks associated with penile penetration, such as pregnancy in the case of a woman and, in any case, sexually transmitted diseases. But an assessment of the level of seriousness in each individual case must be made. In this case, there are two established acts of vaginal penetration and one of anal penetration, along with the indecent assault. The defendant’s conduct was gravely humiliating, intrusive, degrading and damaging and, at least to a very large degree, pursued in the face of unequivocal opposition. Emphasis needs to be placed on factors of deterring others from such behaviour and condemnation of the conduct. There is the question of what is to be made of the several acts of assault in the form of grabbing the complainant by the throat and of slapping her. These could have been made the subject of separate charges but they were not. Ordinarily, the defendant could not be punished for those as such, but s 11A of the Sentencing Act requires me to take violence or threatened violence into account as an aggravating factor. In relative terms and without wishing to diminish the emotional impact, the level of violence was not high. No petechial haemorrhages indicative of forceful strangulation were found and there was no bruising to the face. The medical evidence was that digital penetration could more easily lead to injury than penile penetration. Next, I do not regard specific deterrence as of high significance in this case. The defendant does not have the benefit of the plea of guilty but he is not to be punished for taking the matter to trial. I take into account the defendant’s personal circumstances; in particular his lack of offending history, his care to avoid the complainant after being charged and before moving to Victoria, the roles of carer he has had and now has, and the obvious distress to him of being unable to continue in his present role. I need to impose sentence on the basis that the crimes arose from the one incident and the totality principle applies.
Mr Choraziak, I have noted the jury’s verdicts on which I must act. I have set out the facts consistent with those verdicts as I see them to be, your personal circumstances and the considerations that need to be taken into account. As I said, your conduct was gravely humiliating, intrusive, degrading and damaging. A lengthy term of imprisonment is unavoidable. However, it is clearly appropriate that you be given the maximum opportunity for parole. You are convicted of the four crimes and sentenced to three and a half years’ imprisonment to commence on 4 August 2022 and I order that you not be eligible for parole until you have served one half of that sentence. I must make an order under the Community Protection Offender Reporting Act (Offender Reporting) unless I am satisfied that you do not pose a risk of future relevant offending. I do not think the risk is at all great in your case, but I cannot be satisfied there is no risk, and I must make an order. I order that your name be placed on the Register and that you comply with the reporting obligations under that Act for a period of two years from your release from prison.