Citation: R v Emal Zazy [2018] NSWDC 297
Court: District Court of New South Wales
Date: 17 October 2018
Judge(s): Mahony SC DCJ
Background
The offender attended a private gathering at a Bondi residence in the early hours of 31 July 2016. The victim, who had been socialising at the party, was asleep in a bedroom when the offender entered and got into the bed behind her without her knowledge or consent.
The offender groped the victim's breasts beneath her clothing for several minutes. He then digitally penetrated her vagina. The victim believed the person in bed with her was someone she knew; she only discovered the truth when that person re-entered the room and she turned to find the offender behind her. The offender laughed and acknowledged the deception.
The offender pleaded guilty on arraignment to indecent assault (Count 1, under s 61L of the Crimes Act 1900). He was found guilty by a jury on 6 July 2018 of sexual intercourse without consent, knowing the victim was not consenting (Count 2, under s 61I of the Crimes Act 1900), which carries a maximum penalty of 14 years imprisonment and a Standard Non-Parole Period (SNPP) of 7 years.
Legal Issues
- What weight should be given to the offender's intoxication at the time of the offences as a mitigating or explanatory factor?
- How should the two sentences be structured, particularly in relation to partial accumulation, to reflect the totality principle?
- What significance should be attached to the offender's partial denial of the jury's findings and his characterisation of the offending as a "joke"?
- What weight should be accorded to the offender's subjective circumstances, including family responsibilities, psychological evidence, and assessed risk of reoffending?
- Whether the sentence for Count 2 should depart from the Standard Non-Parole Period, and if so, to what extent?
Decision
The court accepted that the offending fell below the mid-range of objective seriousness for the Count 2 offence, given the relatively brief duration and the absence of other aggravating physical violence. The victim's sleep rendered her particularly vulnerable, and the offender had already been rebuffed by her earlier in the evening, which the court treated as a relevant aggravating feature. The offender's conduct in laughing and making a remark to the victim after the event was noted as callous.
The offender's continued denial of the digital penetration, even after the jury's verdict, significantly undermined any claim to genuine remorse or insight. The court observed that his description of the offending as a "joke" demonstrated a troubling failure to appreciate the gravity of the conduct. His guilty plea to Count 1 attracted a discount, but the overall mitigation available was limited by his partial denials and equivocal remorse.
The court considered the offender's subjective circumstances, including his family background, his support for his mother and siblings, his employment history, his own history of childhood sexual assault, and the psychological evidence indicating a low-to-average risk of reoffending. These matters were weighed in his favour, though they could not displace the seriousness of the offending.
On totality, the court structured the sentences with partial accumulation: the six-month fixed term for Count 1 ran first, and the sentence for Count 2 commenced during the final three months of that term, producing a total effective sentence of 3 years and 3 months with an effective non-parole period of 1 year and 6 months.
Orders Made
- Count 1 (Indecent Assault, s 61L): Convicted and sentenced to a fixed term of 6 months imprisonment, commencing 17 October 2018 and terminating 16 April 2019.
- Count 2 (Sexual Intercourse Without Consent, s 61I): Convicted and sentenced to imprisonment with a non-parole period of 1 year and 3 months, commencing 17 January 2019 and terminating 16 April 2020; balance of term of 1 year and 9 months commencing 17 April 2020 and terminating 16 January 2022.
- Total effective sentence: 3 years and 3 months imprisonment with an effective non-parole period of 1 year and 6 months commencing 17 October 2018.
- Release to parole is not automatic; the State Parole Authority will determine release, subject to stringent conditions.
Key Takeaways
- A continued denial of findings made by a jury, expressed even through a psychologist's report, will substantially limit the weight a sentencing court places on remorse as a mitigating factor.
- Characterising serious sexual offending as a "joke" or prank does not reduce its objective gravity and may itself reflect poorly on an offender's insight.
- Under the totality principle, partial accumulation of sentences for distinct but closely related offences can reflect the overall criminality without producing a crushing result, particularly where the offences, while separate, arose from the same continuous course of conduct.
- The District Court applied a departure below the Standard Non-Parole Period for the s 61I offence, reflecting findings of below mid-range objective seriousness in light of the specific circumstances, including duration and absence of additional violence.
- Subjective circumstances such as family responsibilities, charitable conduct, and a low assessed risk of reoffending remain relevant to sentence, but cannot overwhelm the court's obligation to reflect the seriousness of non-consensual sexual offending against a sleeping victim.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- Bravo v R [2015] CCA 302
- Diaz v R [2018] NSWCCA 33
- Hoskins v R [2016] NSWCCA 157
- Ibbs v R (1987) 163 CLR 447
- Pearce v R (1998) 194 CLR 610
- R v AJP [2004] NSWCCA 434
- R v Daley [2010] NSWCCA 223
- R v Da Silva (Unreported, NSWCCA, 30 November 1995)
- R v Edwards (1996) 90 A Crim R 510
- R v Hibberd (2009) 194 A Crim R 1
- R v King [2009] NSWCCA 117
- R v Peachey [2008] 187 A Crim R 152