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District Court 6 February 2019

R v Rahman

[2019] NSWDC 173

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT.

Citation: R v Rahman [2019] NSWDC 173
Court: District Court of New South Wales
Date: 6 February 2019
Judge: Colefax SC DCJ

Background

The offender, a 38-year-old Bangladeshi national working as a kitchen hand at a Sydney restaurant, appeared for sentencing on one charge of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). A second, related offence was included on a Form 1 to be taken into account on sentence. The maximum penalty for the principal offence is 14 years imprisonment, with a standard non-parole period of 7 years.

The victim was a 24-year-old Dutch tourist on a working holiday visa who worked alongside the offender. After a shared post-shift drinking session in the early hours of 28 January 2018, the offender persistently pressured the heavily intoxicated victim to accompany him to his shared house in Strathfield rather than allowing her to travel home.

Once there, the victim fell asleep on his bed. She awoke to the offender undressing her. She said "no" repeatedly, but the offender committed cunnilingus upon her (the Form 1 matter) and then penile-vaginal intercourse (the principal offence), both without her consent. No overt physical violence such as striking or use of a weapon was involved, but some force was applied. The offender was arrested two days later and remained in custody from that date.

  • What objective seriousness applied to the principal offence of sexual intercourse without consent, and how should the Form 1 matter affect the head sentence?
  • What weight should be given to the offender's personal circumstances, including background, remorse, rehabilitation prospects, and lack of prior criminal history?
  • Whether a 25% discount for an early guilty plea was warranted.
  • Whether special circumstances existed to justify a non-parole period differing from the statutory 75% ratio.

Decision

The District Court assessed the principal offence as falling slightly below the mid-range of objective seriousness for its type. The court noted the absence of overt violence, striking, or use of a weapon, but emphasised that force was nonetheless used and that the victim was in a vulnerable, intoxicated, and disoriented state. The Form 1 matter (the cunnilingus) was treated as significantly increasing the sentence.

The court found the victim impact statement consistent with serious ongoing harm, including post-traumatic stress disorder, disruption to social relationships, continuing nightmares, and the need for weekly counselling. The court observed this reaction, while significant, was not unusual for this type of offending.

The offender's personal circumstances were considered at length. His educated and supportive background, genuine remorse, absence of prior offending, and reasonable rehabilitation prospects led the court to reduce the weight given to specific deterrence. However, the court emphasised that general deterrence remained a significant sentencing consideration. The court also found that the offending was opportunistic and out of character, and that reoffending was unlikely.

A 25% discount was applied for the early guilty plea, reducing a notional sentence of 8 years to 6 years. The court declined to find special circumstances to alter the statutory 75/25 non-parole ratio, citing the offender's age and the seriousness of the offending including the Form 1 matter.

Orders Made

  • The offender was convicted of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW).
  • Sentenced to 6 years imprisonment (reduced from a notional 8 years by a 25% guilty plea discount).
  • Non-parole period of 4 years 6 months, commencing 29 January 2018 and expiring 28 July 2022.
  • Balance of term of 18 months, commencing 29 July 2022 and expiring 28 January 2024.
  • The Form 1 matter was certified and taken into account in setting the head sentence.

Key Takeaways

  • The District Court assessed an opportunistic rape involving a heavily intoxicated victim, committed without overt violence but with persistent pressure and some force, as falling slightly below the mid-range of objective seriousness for offences of this kind.
  • A Form 1 offence of the same general character as the principal offence can materially increase the head sentence, even where the principal offence itself is assessed as below mid-range.
  • General deterrence remained a significant sentencing consideration even where the court formed a favourable view of rehabilitation prospects and reduced the weight given to specific deterrence accordingly.
  • No error was found in applying the standard 75/25 non-parole ratio: absence of community ties and lack of children did not, in combination with the offender's age and the seriousness of the offending, establish special circumstances sufficient to vary the ratio.
  • Under s 61I of the Crimes Act 1900 (NSW), cunnilingus constitutes sexual intercourse, and an act of that nature committed without consent is properly treated as a distinct and serious offence for sentencing purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)

Cases cited: None identified in the judgment.