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District Court 3 October 2008

R v Jasim ALSEEDI

[2008] NSWDC 284

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Jasim Alseedi [2008] NSWDC 284
Court: District Court of New South Wales
Date: 3 October 2008
Judge(s): Berman SC DCJ

Background

The offender was employed as a loss prevention officer at a Coles supermarket in Merrylands. On 5 December 2006, he made repeated and unwelcome advances to the store manager, who consistently rejected them. Despite her clear rebuffs, the offender followed her to the manager's office and closed the door.

Once inside, the offender forced himself on the manager against her will. The conduct escalated from kissing and groping her breast, to placing her hand on his erect penis, to physically forcing her head down to perform oral sex on him. He then masturbated in front of her and ejaculated on the office floor.

The offender pleaded not guilty, claiming the encounter was consensual and that the manager had initiated it. The jury rejected that account after a short trial, finding beyond reasonable doubt that the conduct occurred as the complainant described.

  • What sentences were appropriate for two counts of indecent assault and one count of sexual intercourse without consent?
  • Where did the principal offence (sexual intercourse without consent by fellatio) sit on the spectrum of objective seriousness?
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the head sentence.
  • Whether the hardship caused to the offender's family in Iraq constituted exceptional circumstances relevant to sentencing.

Decision

The court assessed the principal offence (count 3: sexual intercourse without consent by forced fellatio) as slightly below the middle of the range of objective seriousness. This finding reflected that penetration was relatively brief and the offender did not ejaculate in the complainant's mouth. However, the court gave significant weight to the fact that the offender physically grabbed the complainant's head and forced it toward him, and that she had given him no reason whatsoever to believe she was interested in any sexual contact.

On the question of how different forms of non-consensual sexual intercourse should be assessed, the court declined to apply any blanket rule ranking one type as inherently more or less serious than another. The court held that the circumstances surrounding the particular act must be examined in each case.

The court accepted that special circumstances existed. The custodial period represented the offender's first real time in prison, and evidence established that he was experiencing significantly greater anxiety and depression than the general prison population. An extended parole period was warranted to assist his reintegration into the community. The court also recommended that the offender be considered for the CUBIT program (a sex offender treatment program).

The offender's argument that his family's hardship in Iraq constituted exceptional mitigating circumstances was rejected. The court acknowledged the difficult situation of his family but found that financial hardship caused to dependants by imprisonment, while unfortunate, is a common consequence and does not ordinarily amount to exceptional circumstances.

Orders Made

  • Counts 1 and 2 (indecent assault): Fixed term of three years imprisonment, commencing 11 August 2008, to be served concurrently with the sentence on count 3.
  • Count 3 (sexual intercourse without consent): Non-parole period of five years and a head sentence of eight years, commencing 11 August 2008; eligible for parole from 10 August 2013.
  • The offender was recommended for consideration for the CUBIT sex offender treatment program.

Key Takeaways

  • The District Court confirmed that no blanket hierarchy exists among different forms of non-consensual sexual intercourse; objective seriousness must be assessed by reference to all the circumstances of the particular act, not the category of penetration alone.
  • A finding of "slightly below the middle of the range" of objective seriousness for forced fellatio did not prevent the imposition of a substantial sentence, particularly where significant physical force was used and the complainant had given no encouragement whatsoever.
  • Special circumstances justifying an extended parole period can be established where an offender is experiencing significantly elevated psychological distress in custody and requires greater supervised support upon release.
  • Financial hardship to overseas dependants caused by an offender's imprisonment is not, without more, an exceptional circumstance that attracts significant weight in mitigation at sentencing.
  • Where multiple offences arise from a single course of conduct in close temporal proximity, concurrent sentences may be appropriate for the less serious counts, with the overall sentence reflecting the gravity of the most serious charge.

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the judgment text, though the standard non-parole period of seven years applicable to sexual intercourse without consent was referenced (consistent with the Crimes (Sentencing Procedure) Act 1999 (NSW)).

Cases:
- No specific cases cited in the provided judgment text.