AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 October 2020

R v Aziz (a pseudonym)

[2020] NSWDC 854

Sexual offencesDomestic & family violence
A DOMESTIC VIOLENCE OFFENCE AGGRAVATED SEXUAL INTERCOURSE VICTIM <16 YEARS

Citation: R v Aziz (a pseudonym) [2020] NSWDC 854
Court: District Court of New South Wales
Date: 16 October 2020
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Michael Aziz, was the uncle of the complainant, referred to by the pseudonym Quinn. The offending occurred at the offender's home in Southern Wollongong on multiple occasions between October 2016 and February 2018, when Quinn was visiting with her family.

In 2018, Quinn disclosed to her mother that her uncle had subjected her to sexual contact. Police were called and Quinn was interviewed through the Joint Investigation Response Team (JIRT) process. The offender was charged with nine offences.

In July 2020, the matter proceeded to trial by jury. On 4 August 2020, the jury returned guilty verdicts on all nine counts. The judgment under review is the sentencing decision that followed those convictions.

  • What is the appropriate sentence for each of the nine offences, having regard to their individual objective seriousness?
  • How should the standard non-parole periods prescribed for certain offences interact with the overall sentencing exercise?
  • How should the court treat the complainant's disability as an aggravating factor, while avoiding double counting where disability is already an element of an offence?
  • What weight should be given to the victim impact statement, and what parts of it fall outside the permissible scope of such statements?
  • What finding of special circumstances (if any) justified departing from the standard non-parole period ratio when imposing an aggregate sentence?

Decision

Haesler SC DCJ assessed the objective seriousness of each count individually before arriving at an aggregate sentence. His Honour found that the offending occurred over an extended period, involved multiple distinct acts of escalating seriousness, and constituted gross breaches of the trust Quinn placed in her uncle. The offender exploited opportunities when he was effectively alone with the complainant, and his conduct was entirely directed at his own sexual gratification without any regard for her wellbeing.

The Court found that Quinn was aged approximately 13 to 14 at the time of most offences, with the first count possibly occurring when she was younger. Quinn had a degenerative eye condition. His Honour took care not to double-count the disability as a separate aggravating factor where it was already an element of the charged offence, as required by s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. The Court found that, while the disability was substantial, it did not render Quinn materially more vulnerable than she already was as a young niece in the offender's home, and did not enable the offending.

Regarding the victim impact statement, the Court received and considered the statement but noted that portions of it fell outside the matters a court is permitted to take into account under ss 26 and 28 of the Crimes (Sentencing Procedure) Act 1999. His Honour also acknowledged that the complainant had been the alleged victim of a separate assault by another relative, and took care not to hold the present offender responsible for harm attributable to that separate event.

The Court imposed an aggregate sentence, finding special circumstances that justified a longer balance of term than would ordinarily apply. The sentencing purposes considered included retribution, specific and general deterrence, and the vindication of the complainant's dignity.

Orders Made

Individual indicated sentences were recorded for each count before the imposition of an aggregate term:

  • Count 1 (aggravated indecent assault, s 61M(2)): 1 year, with a standard non-parole period of 8 months
  • Count 2 (aggravated indecent assault, s 61M(2)): 1 year, with a standard non-parole period of 8 months
  • Count 3 (digital penetration, s 66C(4)): 3 years, non-parole period 1 year 11 months
  • Count 4 (cunnilingus, s 66C(4)): 4 years, non-parole period 2 years 7 months
  • Count 5 (fellatio, s 66C(4)): 5 years, non-parole period 3 years 3 months
  • Count 6 (fellatio, s 66C(4)): 5 years, non-parole period 3 years 3 months
  • Count 7 (aggravated indecent assault, s 61M(2)): 1 year, non-parole period 10 months (indicated sentence 3 months)
  • Count 8 (incite act of indecency, s 61O(1)): 1 year
  • Count 9 (procure unlawful sexual activity, s 66EB(3)): 1 year, non-parole period 8 months
  • Aggregate sentence: 8 years and 6 months, commencing 15 October 2020
  • Aggregate non-parole period: 5 years and 6 months, with eligibility for parole consideration from 14 April 2026
  • Balance of term: 3 years, reflecting a finding of special circumstances, expiring 14 April 2029

Key Takeaways

  • The District Court confirmed that every act of child sexual exploitation is treated as serious, and that the form of the act alone does not determine objective seriousness; the nature of the conduct, the degree of physical contact, the duration, the age gap, and the relationship between offender and victim all bear on the assessment.

  • Where a complainant's disability is an element of a charged offence, a sentencing court must take care not to treat it as a separate aggravating circumstance under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, to avoid double counting.

  • A victim impact statement is a recognised and required consideration at sentencing, but its permissible scope is confined to personal harm suffered directly as a result of the offences charged; harm attributable to the conduct of others falls outside that scope.

  • Breaches of familial trust were identified as a significant feature of the offending, with the Court treating the offender's position as uncle and the complainant's presence in his home as circumstances that heightened the exploitative character of each act.

  • An aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months was imposed, with a finding of special circumstances justifying a three-year balance of term that exceeded the standard ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 66C(4), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 26, 28, 68(1)(c)

Cases
- BT v R [2010] NSWCCA 267
- LB v R [2019] NSWCCA 151
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen v The Queen [2016] HCA 17
- R v Edwards (1996) 90 A Crim R 510
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Tepania v R [2018] NSWCCA 247