Citation: Regina v Mufiz Rahaman [2016] NSWDC 205
Court: District Court of New South Wales
Date: 31 August 2016
Judge: Judge AC Scotting
Background
The offender, a 20-year-old Rohingya refugee from Myanmar, pleaded guilty to one count of sexual intercourse with a person aged between 10 and 14 years, contrary to s 66C(1) of the Crimes Act 1900. The maximum penalty for the offence is 16 years imprisonment. The offender had arrived in Australia by boat in 2012 and, at the time of the offence, was living in Sydney with his brother.
The complainant was a 10-year-old boy who had arrived in Australia from Myanmar as a refugee in 2013. He lived with his father in shared accommodation. On 8 January 2015, while the complainant's father was briefly out of the room, the offender entered and committed anal intercourse on the complainant. The father returned to find the offender on top of his son and confronted him. DNA evidence confirmed the offending.
The offender had himself been subjected to repeated sexual abuse as a child in Myanmar, and gave evidence that he had grown up in a context where sexual contact between males was not understood by him to be criminal. The court considered this background extensively in the sentencing exercise.
Legal Issues
- What was the objective seriousness of the offence, having regard to the age of the victim, the location of the offending, and the circumstances of the act?
- What weight should be given to the offender's deprived upbringing, cultural background, history of childhood sexual abuse, and refugee status as mitigating factors?
- Whether the offender demonstrated genuine remorse and contrition so as to establish that mitigating factor under the Crimes (Sentencing Procedure) Act 1999
- What discount on sentence was appropriate for the guilty plea, having regard to its timing?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence
Decision
Judge Scotting assessed the offence as falling at the middle range of objective seriousness. The victim was only 10 years old, the offending occurred in the victim's home, and penetration was established by DNA evidence. These features weighed heavily in the assessment of gravity.
The court accepted that the offender's background warranted significant mitigating weight. He had been born into extreme poverty in a remote village in Myanmar, was a member of the persecuted Rohingya minority, and had himself been subjected to repeated sexual abuse as a child. Applying Bugmy v R (2013) 249 CLR 571, the court treated the offender's deprived and abusive background as a matter that mitigated the sentence.
The court declined to find that the offender had established genuine remorse as a mitigating factor. While the offender expressed apology in evidence, his account at sentencing contradicted the agreed facts he had signed, and the court was unable to find on the balance of probabilities that he had genuinely accepted responsibility. The court did, however, accept that the offender had come to a better understanding of Australian law as a result of his prosecution.
A guilty plea discount of 10% was applied, reflecting the late timing of the plea, which had been entered when the trial was already listed. The court found special circumstances under s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999, noting that it was the offender's first time in custody, that he spoke very little English, and that his membership of a small linguistic and cultural minority would significantly limit his access to educational and rehabilitation programmes in prison.
Orders Made
- The offender was convicted of one count of sexual intercourse with a person aged between 10 and 14 years, contrary to s 66C(1) of the Crimes Act 1900
- Sentenced to 5 years imprisonment (reduced from 5 years and 6 months by a 10% guilty plea discount)
- Non-parole period of 3 years and 4 months, commencing 9 January 2015
- Eligible for release on parole on 8 May 2018
Key Takeaways
- The District Court confirmed that an offence involving penile anal intercourse with a 10-year-old committed in the victim's home falls in the middle range of objective seriousness, even where no physical injuries are recorded.
- Under Bugmy v R (2013) 249 CLR 571, a sentencing court is required to take into account a deprived and abusive upbringing as a mitigating factor, and that principle applied here to a Rohingya offender whose childhood was marked by poverty, persecution, and repeated sexual violence.
- A claimed lack of understanding that sexual contact between males was unlawful, grounded in the offender's cultural background, did not eliminate criminality but formed part of the overall sentencing context.
- Genuine remorse requires more than expressions of apology in court: where an offender's evidence contradicts agreed facts, the court may decline to find the mitigating factor of contrition established on the balance of probabilities.
- Special circumstances justifying a departure from the standard non-parole period ratio can arise from a combination of factors including first-time custody, significant language barriers, and restricted access to rehabilitation programmes due to minority status.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 3A, 5, 21A(2)(eb), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 22
Cases
- Bugmy v R (2013) 249 CLR 571
- Muldrock v R (2011) 244 CLR 120
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- R v BJW (2000) 112 A Crim R 1
- R v KNL (2005) A Crim R 268
- Palijan v R [2010] NSWCCA 142
- R v Lawrence [2005] NSWCCA 91
- R v Wright (1997) 93 A Crim R 48
- R v Reynolds, Unreported, NSWCCA, 7 December 1998
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Fisher (1989) 40 A Crim R 442
- R v Sea, Unreported, NSWCCA, 13 August 1980