Citation: R v Aiza Hajj [2019] NSWDC 458
Court: District Court of New South Wales
Date: 1 August 2019
Judge: Wilson SC DCJ
Background
The offender, a man born in October 1992, was convicted by a jury of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The offending occurred on 30 March 2018. The maximum penalty for the offence is 14 years imprisonment, with a standard non-parole period of seven years.
The facts established at trial were that the complainant had met the offender's brother at a Sydney venue and accompanied him to his apartment in Bondi, where she and the brother engaged in consensual sexual intercourse. The complainant then fell asleep. She awoke to find herself having sex with another person, who turned out to be the offender, the brother's flatmate. She immediately questioned who was present and ordered him to leave, and he did so.
The offender had been in custody on two separate occasions: briefly in March and April 2018, and then continuously from the jury's verdict in June 2019. The parties agreed that any sentence would commence on 6 June 2019.
Legal Issues
- What factual findings should be made for sentencing purposes, particularly regarding the absence of consent?
- What is the appropriate sentence, having regard to the objective seriousness of the offence and the offender's subjective circumstances?
- Whether "special circumstances" under the Crimes (Sentencing Procedure) Act 1999 existed to justify a departure from the standard ratio between the non-parole period and the head sentence.
Decision
Wilson SC DCJ conducted a careful review of the trial transcript to make the factual findings necessary for sentencing. His Honour accepted the complainant's account that she awoke during the sexual intercourse, quickly realised the person was not the brother (noting differences in body, breathing, and the presence of shoulder hair), and immediately objected. The court found the complainant's evidence to be credible and her distress genuine, noting the contemporaneous text messages she sent to both the brother and a friend shortly after the incident.
The court assessed the objective seriousness of the offence as falling in the mid-range. The offender had no prior criminal history and was of otherwise good character, as supported by numerous testimonials from family and community members. His Honour also had close regard to the Victim Impact Statement, which made plain that the complainant had suffered significantly as a result of the offence.
On the question of special circumstances, the Crown conceded their existence and the court agreed. Three factors supported a departure from the standard non-parole ratio in the offender's favour: it was his first time in custody; he required treatment and rehabilitation while in prison; and his custody would be more onerous given his isolation from family and community support, including his parents who had travelled from Mexico.
Orders Made
- The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
- Non-parole period of 18 months, commencing 6 June 2019 and expiring 5 December 2020.
- Head sentence of three years, commencing 6 June 2019 and expiring 5 June 2022.
- Earliest release on parole: 5 December 2020.
Key Takeaways
- The District Court confirmed that factual findings at sentence require independent review of the trial transcript, particularly where consent is the central contested issue.
- Under s 61I of the Crimes Act 1900, a finding of guilt is established where the jury is satisfied the accused knew, was reckless as to, or had no reasonable grounds to believe the complainant consented.
- Special circumstances justifying a departure from the standard non-parole ratio were established where a first-time custodial offender required rehabilitation and faced heightened hardship through isolation from family support networks.
- Contemporaneous text messages sent by a complainant shortly after an alleged sexual assault can form part of the factual foundation for sentencing findings.
- Good character, family support, and rehabilitative steps taken early in custody were treated as mitigating factors, though they did not displace the seriousness of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A (purposes of sentencing), 21A (aggravating and mitigating factors)
Cases:
- Tepania v R [2018] NSWCCA 247