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District Court 19 July 2019

R v AI; R v Dagdanasar

[2019] NSWDC 370

Sexual offences

Citation: R v AI; R v Dagdanasar [2019] NSWDC 370
Court: District Court of New South Wales
Date: 19 July 2019
Judge(s): M L Williams SC DCJ

Background

Following a jury trial, two offenders (identified by initials and surname respectively, with suppression considerations noted) were each convicted of six counts of aggravated sexual assault. The offences occurred over several hours in the early morning of 9 November 2016, when an 18-year-old victim, who had been at her Year 12 formal and was heavily intoxicated, was taken to a house and subjected to multiple serious sexual assaults by the two offenders and a third man who subsequently fled overseas.

The victim had been found sitting in a gutter in Auburn in the early hours of the morning, attempting to arrange transport home. She was picked up by a third man who sexually assaulted her in his vehicle before taking her to the house. Over the following hours, drugs and alcohol were administered to the victim, and she was subjected to degrading and repeated sexual assaults.

The defence at trial centred on an alleged consent, supported by mobile phone video recordings in which the victim, visibly affected by intoxicating substances, was said to indicate agreement to what was occurring. The jury rejected this defence entirely. The third man involved in the offending had fled to Turkey and was not before the court.

  • What aggregate sentence was appropriate for each offender across six counts of aggravated sexual assault under ss 61J and 61JA of the Crimes Act 1900?
  • How should the principle of parity operate between co-offenders who had different levels of participation in the joint criminal enterprise?
  • Which statutory aggravating factors applied, including breach of conditional liberty, administering an intoxicating substance to the victim, offending in company, and causing substantial harm?
  • How should the court avoid imposing a "crushing" sentence while still reflecting the objective gravity of the offending and the purposes of sentencing, including general deterrence?
  • What weight should be given to victim impact evidence and the standard non-parole periods prescribed by statute?

Decision

The court accepted the Crown's formulation of the facts as established beyond reasonable doubt, consistent with the jury's verdicts. The offending was characterised as falling within the highest category of sexual assault offences under the Crimes Act. Count 2, charged under s 61JA (aggravated sexual assault in company causing actual bodily harm), carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The remaining five counts were charged under s 61J, carrying a maximum of 20 years and a standard non-parole period of 10 years.

Multiple statutory aggravating factors were found to apply, including that the offending occurred in company, that the victim was caused to take a drug or intoxicating substance, that substantial harm was inflicted, and that one offender was in breach of conditional liberty at the time of the offending. The victim's impact statement was also before the court and formed part of the sentencing considerations.

The court applied the parity principle in calibrating the sentences between the two offenders, recognising that their respective levels of participation in the joint criminal enterprise differed. AI received a higher aggregate sentence reflecting a greater degree of criminality. The court was also required to guard against the imposition of a "crushing" sentence, a principle that requires a sentencing judge to consider whether the total effective sentence is disproportionate to the overall criminality when multiple offences are sentenced together.

Aggregate sentences were imposed under the Crimes (Sentencing Procedure) Act 1999, with indicative sentences assigned to each individual count. The court also addressed the proper approach to special circumstances and non-parole periods, noting the statutory default ratio and the need to avoid double-counting mitigating factors already reflected in the head sentence.

Orders Made

Offender AI:
- Convicted of each offence
- Aggregate imprisonment: 26 years, commencing 16 February 2017, expiring 15 February 2043
- Non-parole period: 18 years, expiring 15 February 2035
- Indicative sentences: Count 1: 12 years (NPP 7 years); Count 2: 16 years (NPP 11 years); Count 3: 8 years (NPP 5 years); Count 8: 8 years (NPP 5 years); Count 9: 13 years (NPP 8 years); Count 10: 12 years (NPP 7 years)

Offender Dagdanasar:
- Convicted of each offence
- Aggregate imprisonment: 24 years, commencing 16 November 2016, expiring 15 November 2040
- Non-parole period: 16 years, expiring 15 November 2032
- Indicative sentences: Count 1: 8 years (NPP 5 years); Count 2: 12 years (NPP 7 years); Count 3: 8 years (NPP 5 years); Count 8: 12 years (NPP 7 years); Count 9: 8 years (NPP 5 years); Count 10: 8 years (NPP 5 years)

Key Takeaways

  • Section 61JA of the Crimes Act 1900, which carries a maximum penalty of life imprisonment, represents the legislature's recognition of the particular gravity of gang rape offences, placing them above other aggravated sexual assault offences under s 61J.
  • The parity principle required the District Court to calibrate sentences between co-offenders by reference to their respective levels of participation in the joint criminal enterprise, resulting in meaningfully different aggregate terms despite both being convicted of the same six counts.
  • Where multiple aggravating factors are established beyond reasonable doubt, including administering intoxicating substances, offending in company, and causing substantial harm, each may independently bear on the objective seriousness of the offending and the head sentence imposed.
  • A sentencing court imposing multiple consecutive or partly concurrent sentences must consider whether the total effective sentence would be "crushing," ensuring the aggregate term remains proportionate to the overall criminality of the offender.
  • Consent defences based on video recordings do not, of themselves, establish consent; the court found that the victim's apparent state of heavy intoxication in the recordings was directly relevant to the jury's rejection of the defence and to the assessment of the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61JA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Cahyadi v R (2007) 168 A Crim R 41
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Elias v The Queen (2013) 248 CLR 483
- Ewen v R [2015] NSWCCA 117
- Franklin v The Queen [2013] NSWCCA 122
- Haines v The Queen [2012] NSWCCA 238
- Ibbs v The Queen (1987) 163 CLR 447
- Johnson v The Queen (2004) 78 ALJR 616
- King v R [2010] NSWCCA 33
- Markarian v The Queen (2005) 228 CLR 357
- McDowall v R [2019] NSWCCA 29
- Pearce v The Queen (1998) 194 CLR 610
- Qoro v R [2008] NSWCCA 220
- R v AEM [2002] NSWCCA 58
- R v Gavel (2014) 239 A Crim R 469
- R v Hall [2017] NSWCCA 313
- R v Hemsley [2004] NSWCCA 228
- R v Kilic (2016) 259 CLR 256
- R v KR [2012] NSWCCA 32