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District Court 18 September 2015

R v Osman Chamseddine

[2015] NSWDC 233

Sexual offences
CRIMINAL LAW SENTENCE HARM TO VICTIM DIFFICULTY IN ASSESSING OFFENCES AGAINST VULNERABLE CHILDREN NO REMORSE OR CONTRITION

Citation: R v Osman Chamseddine [2015] NSWDC 233
Court: District Court of New South Wales
Date: 18 September 2015
Judge: Knox SC DCJ

Background

The offender was a taxi driver engaged to transport children with disabilities to and from school in the outer western suburbs of Sydney. He was approximately 60 years old at the time of the offences. The victim, referred to as Ms MP, was a deaf and largely non-verbal girl aged 10 to 11 years old who was in Year 4.

Over a three-week period between June and November 2009, the offender deviated from the approved school-run route on at least four occasions, stopping the vehicle in an isolated industrial area. On each occasion, Ms MP was the sole remaining passenger. The offender used those opportunities to sexually assault her inside the vehicle.

A jury convicted the offender on 28 May 2015 following a trial at Parramatta. The sentencing proceedings before Knox SC DCJ addressed six offences in total.

  • What was the appropriate sentence for four counts of aggravated sexual intercourse with a child aged 10 to 14 years (s 66C(2), Crimes Act 1900), given the absence of a standard non-parole period?
  • What was the appropriate sentence for two counts of aggravated indecent assault of a child under 16 years (s 61M(2), Crimes Act 1900), which carry a standard non-parole period of eight years?
  • How should the court assess harm to the victim given the difficulty in directly attributing her observed presentation to the specific offences?
  • Whether special circumstances existed justifying a variation to the statutory ratio of non-parole period to total sentence.
  • Whether any exceptional hardship to the offender's family warranted a lesser sentence.

Decision

The court found the offences were serious. The aggravating circumstances included the victim's extreme vulnerability (a deaf child with limited vocal ability), the offender's position of authority as her driver, the premeditated and repetitive nature of the offending across multiple discrete occasions, and the deliberate isolation of the victim. The offender instructed Ms MP not to tell her parents or teacher, exploiting her fear and her communication limitations. She described her body as "frozen" with fear and stated that she tried to scream but could not be heard.

On the question of victim harm, the court acknowledged difficulty in assessing the precise psychological impact on Ms MP, noting that her hearing impairment and limited vocal ability made conventional assessment challenging. The court nonetheless accepted that harm had been caused and treated this as a relevant sentencing consideration, consistent with the approach taken in comparable cases.

The offender showed no remorse or contrition. He maintained his denial of the offences throughout, which the court noted was his right, but meant no discount for remorse applied. His age, lack of prior convictions, language difficulties, and the likely additional burden that imprisonment would place on him as an older, non-English-speaking offender were taken into account. No finding of exceptional hardship to his family was made.

The court found that special circumstances existed, warranting a variation of the statutory non-parole ratio to two-thirds of the head sentence. The offender's age, language barriers, and the benefits of a longer period of supervision on release were the basis for that finding. An intensive correction order was not available for offences of this nature.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 15 years.
  • Non-parole period of 10 years, commencing 15 March 2015 and expiring 14 March 2025.
  • Additional term (parole period) of 5 years, expiring 14 March 2030.
  • Recommendation that the offender be placed on the Sex Offenders Program, including the Deniers Program, during an appropriate period of his sentence.
  • A copy of all reports tendered at sentencing to accompany the offender upon admission to custody.
  • Upon release on parole: supervision as directed by Community Corrections, and obligation to notify Community Corrections of any residential address and any change of address no less than seven days in advance.

Key Takeaways

  • The District Court treated the victim's hearing impairment and inability to call for help as significantly aggravating factors, compounding the inherent vulnerability already present by reason of her age.
  • A position of authority over a child, such as that held by a contracted school transport driver, constitutes a statutory aggravating circumstance under s 66C(2) of the Crimes Act 1900 and is treated as a serious feature when determining sentence.
  • Difficulty in directly measuring psychological harm to a victim does not eliminate harm as a sentencing consideration; the court accepted harm was suffered and weighed it accordingly.
  • Special circumstances capable of justifying a departure from the standard non-parole ratio can include an offender's advanced age, language barriers, and the increased burden of imprisonment those factors impose, as well as the need for extended post-release supervision.
  • Where an offender maintains a complete denial throughout proceedings, no discount for remorse or contrition is available, though the court confirmed that exercising the right to contest charges does not of itself attract a more severe sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(2), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 66
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Jurisic (1998) 45 NSWLR 209
- R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
- GSH v R; R v GSH [2009] NSWCCA 214
- GAT v R [2007] NSWCCA 208
- Huynh v R [2015] NSWCCA 167
- Corby v R [2010] NSWCCA 146
- R v PGM [2008] NSWCCA 172
- R v Campbell [2005] NSWCCA 125
- R v Hibberd (2009) 194 A Crim R 1
- R v King [2009] NSWCCA 117
- R v TAB [2002] NSWCCA 274
- R v BJW (2000) 112 A Crim R 1
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- Wray v R [2014] NSWCCA 166
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Yates (1984) 13 A Crim R 319
- R v Holyoak (1995) 82 A Crim R 502
- R v T (1990) 47 A Crim R 29
- R v Muldoon (unrep, 13/12/90, NSWCCA)
- R v Sea (unrep, 13/8/90, NSWCCA)
- R v Da Silva (unrep, 30/11/95, NSWCCA)
- R v Dennis (unrep, 14/12/92, NSWCCA)
- R v Johnson (unrep, 16/5/97, NSWCCA)