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District Court 13 February 2020

R v Agan

[2020] NSWDC 85

Sexual offences

Citation: R v Agan [2020] NSWDC 85
Court: District Court of New South Wales
Date: 13 February 2020
Judge: M L Williams SC DCJ

Background

The offender was a South Sudanese refugee born in 1988 who arrived in Australia in 2007 after an extraordinarily traumatic early life, including the death of both parents in the Sudanese civil war, conscription as a child soldier at age seven, and years in refugee camps. He had no family in Australia and had been diagnosed with post-traumatic stress disorder, as well as alcohol and cannabis dependence.

The victim was a woman born in 1991 with an intellectual disability assessed at the equivalent of an eight-to-ten-year-old child, with an IQ of around 50 to 55. She required 24-hour supervision and lived in supported accommodation. The offender and the victim were known to each other prior to the offending.

On 17 March 2018, the offender called the victim to his residence in Queanbeyan. Over the course of that afternoon and evening, he sexually assaulted her three times, each time continuing despite her repeated verbal refusals. Physical injuries were subsequently identified, and forensic evidence confirmed the assaults. The offender initially denied any sexual contact with police but later pleaded guilty to three counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900, the aggravating circumstance being the victim's cognitive impairment.

  • What sentence was appropriate for three counts of aggravated sexual assault of a cognitively impaired victim, having regard to the objective seriousness of each offence?
  • What weight should be given to the offender's significant subjective circumstances, including his refugee history, PTSD, substance dependence, and lack of family support?
  • What discount was appropriate for the utilitarian value of the late guilty plea?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence (under the Crimes (Sentencing Procedure) Act 1999)?
  • What action, if any, should be taken for the breach of an existing conditional bond arising from a prior high-range PCA offence?

Decision

The court assessed the offending as towards the mid-range of objective seriousness. Each assault involved penile-vaginal intercourse without a condom, committed against a victim who repeatedly and clearly refused consent and who lacked the cognitive capacity to protect herself. The victim suffered physical injury, including bruising and a labial tear, and subsequently experienced significant psychological effects including panic attacks and an inability to continue working.

Williams SC DCJ applied a 15% discount to the sentence to reflect the utilitarian value of the guilty plea. Although the plea came relatively late, it spared the cognitively impaired victim the ordeal of giving evidence. Both parties accepted that a period of full-time custody was the only appropriate outcome.

The court gave substantial weight to the offender's subjective circumstances, described as forming the basis of "a very strong subjective case." These included his childhood trauma, PTSD, isolation in Australia, absence of family support, and substance dependence. The court also took into account supportive community relationships and the offender's efforts to improve his English and build trade skills while in custody. General and specific deterrence, denunciation, and accountability were identified as important sentencing considerations alongside rehabilitation.

Special circumstances were found, justifying a non-parole period shorter in proportion to the head sentence than the statutory norm. The court noted the offender's first time in custody, the demonstrated need for supervision and support upon release, and his lack of family support in managing his mental health and alcohol issues. A small degree of accumulation was applied across the three counts to reflect that they were distinct instances of offending. The breach of the existing section 12 bond was proven but no further action was taken, given the overall circumstances.

Orders Made

  • The offender was convicted of each of the three offences of aggravated sexual assault.
  • Indicative sentences of 5 years and 6 months imposed for each of counts 1, 2, and 3.
  • Aggregate sentence of 6 years imprisonment, commencing 28 March 2018.
  • Non-parole period of 3 years and 8 months, expiring 27 November 2021.
  • Special circumstances found.
  • Breach of section 12 bond (high-range PCA) proven; no further action taken.

Key Takeaways

  • A conviction for aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (where the circumstance of aggravation is the victim's cognitive impairment) carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years, reflecting the legislature's recognition of the particular vulnerability of such victims.
  • The District Court treated the offending as towards the mid-range of objective seriousness, applying a small degree of accumulation across three separate counts to reflect the distinct nature of each assault, rather than treating all three as a single episode.
  • Where a cognitively impaired victim is spared the ordeal of giving evidence as a result of a late guilty plea, that utilitarian benefit remains a legitimate basis for a plea discount, even where the plea is not entered at an early stage.
  • Special circumstances justifying a reduced non-parole period relative to the head sentence can arise from a combination of factors including a first period of custody, diagnosed mental health conditions, substance dependence, absence of family support, and a demonstrated need for extended post-release supervision.
  • Victim impact statements are taken into account on a limited and unchallenged basis, as to their effect on the victim, consistent with the approach confirmed in R v Thomas [2007] NSWCCA 269; they are not tested or formally adopted by the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 12 (conditional bonds)

Cases:
- R v Thomas [2007] NSWCCA 269 (use of victim impact statements on sentence)
- Panchal v R; R v Panchal [2014] NSWCCA 275 (comparable sentence for sexual assault of impaired victim)
- Tindall v R [2019] NSWCCA 136