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District Court 21 February 2020

R v Husan Hasanovic

[2020] NSWDC 40

Sexual offences

Citation: R v Husan Hasanovic [2020] NSWDC 40
Court: District Court of New South Wales
Date: 21 February 2020
Judge: Tupman DCJ

Background

The offender, a 27-year-old man, was sentenced after pleading guilty in the Local Court to one charge of sexual intercourse with a child aged between 10 and 14, contrary to s 66C(1) of the Crimes Act 1900. The offence occurred on Valentine's Day 2019 at Chester Hill. The victim was a 12-year-old girl who had boarded the wrong train and encountered the offender at a train station.

After a brief conversation, the offender took the victim to his granny flat. There, he digitally penetrated her vagina and then engaged in penile-vaginal intercourse. The victim dressed and left, later disclosing the assault to her boyfriend and then her mother the following day. Police were notified, and the offender was arrested following a search warrant executed in the early hours of 27 February 2019.

The offender had been in custody since arrest. He asked the court to take into account a second s 66C(1) offence (the digital penetration) on a Form 1 basis. The early guilty plea attracted a 25% discount under the Early Appropriate Guilty Plea scheme.

  • What was the appropriate objective assessment of the criminality of the offences?
  • What weight should be given to the offender's subjective circumstances, including his criminal history, alcohol use at the time, and conduct since arrest?
  • How should the standard non-parole period of seven years be treated, given the early guilty plea?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio?
  • Whether a formal warning under the Crimes (High Risk Offenders) Act 2006 was required?

Decision

Objective seriousness. Tupman DCJ assessed the offending as falling at the lower end of the range of offences chargeable under s 66C(1). The age disparity of 15 years between offender and victim was significant. The sexual conduct involved actual penetration, including penile-vaginal intercourse, which the court characterised as a relatively serious form of sexual contact, carrying risks of injury, disease and pregnancy. Mitigating factors on objective gravity included that the incident was brief, occurred on one occasion only, and involved no physical violence beyond what is inherent in any sexual assault.

Subjective circumstances. The offender had a lengthy criminal history, including a prior imprisonment for robbery in company, but no prior sexual offences. He had been a high-ranking member of an outlaw motorcycle gang and had significant issues with alcohol and drug abuse. The court accepted that he was drunk at the time of the offence and that alcohol was a contributing factor. Since entering custody, he had ceased using drugs and alcohol entirely and had developed some insight into the connection between his substance use and his offending. Personal circumstances also included significant grief, having lost multiple close family members in a short period. These matters were weighed against the absence of any prior sexual offending and his early plea.

Non-parole period and special circumstances. Although the standard non-parole period of seven years was not strictly applicable given the early plea, the court was required to take it into account as a guideline. After applying the 25% discount, the court arrived at an overall sentence of two years and six months. The court found special circumstances: the offender required a longer-than-usual period of community supervision to address alcohol and substance abuse issues and grief, and to reduce the risk of recidivism as a sexual offender. This resulted in a non-parole period of 18 months and a parole period of 12 months, a ratio that departs from the ordinary one-third parole period.

High Risk Offender warning. The court formally warned the offender that, as a serious sex offence within the meaning of the Crimes (High Risk Offenders) Act 2006, the offending triggers the possibility of the Attorney General applying to the Supreme Court for an order that the offender be declared a high risk offender. Such an order could prevent release at the end of the non-parole period or overall term, or impose conditions including electronic monitoring.

Orders Made

  • The offender was convicted of one count under s 66C(1) of the Crimes Act 1900.
  • Sentenced to a non-parole period of 18 months, commencing 27 February 2019 and expiring 26 August 2020.
  • Parole period of 12 months, commencing 27 August 2020 and expiring 26 August 2021.
  • Overall term of imprisonment: two years and six months, commencing 27 February 2019 and expiring 26 August 2021.
  • The Form 1 offence (digital penetration, also contrary to s 66C(1)) was taken into account in sentencing.
  • A formal warning was given regarding the application of the Crimes (High Risk Offenders) Act 2006.

Key Takeaways

  • The District Court placed this offending at the bottom of the range for s 66C(1) offences, citing its brief duration and the absence of additional physical aggression, while acknowledging that penile-vaginal penetration of a 12-year-old child remained objectively serious.
  • A 25% discount for an early guilty plea under the Early Appropriate Guilty Plea scheme displaced the strict application of the seven-year standard non-parole period, though that period remained a relevant guideline in the sentencing exercise.
  • Special circumstances can be found where an offender requires an extended period of community supervision to address alcohol and substance abuse and to reduce the risk of sexual recidivism, justifying a non-parole period shorter than the default statutory ratio.
  • Under the Crimes (High Risk Offenders) Act 2006, a formal warning at sentencing is required where the offence qualifies as a serious sex offence, alerting the offender to the possibility of continued detention or supervised release beyond the sentence imposed.
  • A lengthy general criminal history, without prior sexual offending, did not operate as a factor of aggravation in this sentencing, though it foreclosed any leniency on the basis of good character.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(1) (sexual intercourse with child aged 10 to 14; maximum penalty 16 years' imprisonment; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases cited: No cases were cited in the judgment as provided.