Citation: R v Hassan NAGI [2010] NSWDC 129
Court: District Court of New South Wales
Date: 23 June 2010
Judge(s): Bennett SC DCJ
Background
The offender was a taxi driver who sexually assaulted three separate female passengers over a period spanning July 2003 to June 2007. Each victim was in the offender's taxi when the offences occurred, placing him in a position of trust relative to them. The offences were serious, involving penetrative sexual acts committed without consent and with knowledge that the victims were not consenting.
The offender was originally charged on a ten-count indictment. He initially pleaded not guilty and sought separate trials for the offences relating to each complainant. After the court rejected those applications and ruled that evidence of each set of offences could be used as coincidence evidence in respect of the others, the offender entered guilty pleas on a fresh six-count indictment, admitting two counts of sexual intercourse without consent in respect of each of the three victims.
During proceedings, it emerged that the offender had been diagnosed with HIV. Steps were taken to maintain the confidentiality of this diagnosis in open court. The court noted there was no evidence that any of the victims, or the offender's wife and children, had contracted the infection.
Legal Issues
- The objective seriousness of the offences under s 61I of the Crimes Act 1900, including the relevance of the offender's position as a taxi driver
- The weight to be given to the guilty pleas, including their late entry following the court's coincidence evidence ruling
- Whether the offender's HIV diagnosis constituted a special circumstance warranting a reduction in the statutory non-parole period
- How to structure the sentences across six counts, including the degree of accumulation appropriate to reflect the three separate victims and the totality of the offending
- The impact of the offences on the victims, as disclosed through victim impact statements
Decision
Bennett SC DCJ assessed the offences as serious examples of the s 61I offence. The offender's role as a taxi driver placed him in a position of trust and authority over passengers, and the victims were vulnerable by virtue of their reliance on his services. The court regarded the repeated offending against three different women over several years as a significant aggravating feature.
The guilty pleas attracted some discount, though their lateness, entered only after the court had ruled against the offender on separate trials and coincidence evidence, limited the utilitarian value they would otherwise have carried. The court applied the relevant sentencing principles governing the quantification of discount in those circumstances.
The court found special circumstances existed, partly because of the offender's HIV diagnosis and the need for supervision and treatment upon release, and partly because of the accumulation of sentences. This justified a reduction in the statutory non-parole period ratio across certain counts. The victim impact statements confirmed the profound and ongoing harm suffered by all three women.
The sentences were structured so that counts 1 and 2 (relating to the first victim) ran concurrently with each other, with subsequent pairs of counts accumulated by two years each on the preceding pair. This produced a combined sentence of thirteen years, ten months and twenty-four days, with an overall non-parole period of nine years, five months and three days.
Orders Made
- Counts 1 and 2: concurrent sentences, forming the base of the accumulation structure
- Counts 3 and 4: concurrent with each other, accumulated by two years upon counts 1 and 2, commencing 19 May 2011
- Counts 5 and 6: concurrent with each other, accumulated by two years upon counts 3 and 4, commencing 19 May 2013; overall sentence of nine years, ten months and twenty-four days with a non-parole period of five years, five months and three days expiring 21 October 2018
- Overall sentence: thirteen years, ten months and twenty-four days
- Overall non-parole period: nine years, five months and three days
- Parole period following non-parole period: four years, five months and twenty-one days
- The court requested Corrective Services consider placing the offender at a facility within the Long Bay Prison complex to ensure access to HIV treatment
Key Takeaways
- A taxi driver who commits sexual assaults against passengers occupies a position of trust, and that position is a relevant aggravating factor in assessing objective seriousness under s 61I of the Crimes Act 1900.
- Late guilty pleas, entered only after adverse rulings on pre-trial applications rather than at the first reasonable opportunity, attract a reduced discount compared with early pleas of guilty.
- Where sentences are substantially accumulated due to multiple victims, that accumulation is itself a basis for finding special circumstances justifying adjustment of the non-parole period, alongside offender-specific factors such as medical conditions requiring supervision.
- The District Court structured the sentences using a "staircase" accumulation of two years between each pair of counts, reflecting that the three victims were separate individuals while also giving effect to the totality principle to avoid a crushing overall sentence.
- An offender's serious medical condition diagnosed during proceedings can be taken into account in sentencing, particularly in assessing the conditions of custody and the need for post-release supervision, without that condition being treated as a straightforward mitigating factor.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L, 61N(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- Ali v R [2010] NSWCCA 35
- R v AJP (2004) 150 A Crim R 575
- R v Borkowski [2009] NSWCCA 102
- R v Previtera (1997) 94 A Crim R 76
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168