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District Court 8 October 2021

R v Alenezi

[2021] NSWDC 718

Sexual offences
CRIME SEXUAL OFFENCES SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Alenezi [2021] NSWDC 718
Court: District Court of NSW
Date: 8 October 2021
Judge(s): Bennett SC DCJ

Background

The offender, a 38-year-old man, appeared for sentencing on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (penile-vaginal penetration). A second, related offence involving oral penetration was placed on a Form 1 (a procedure allowing the court to take an additional offence into account without imposing separate punishment for it).

The victim was a 22-year-old woman who, in the early hours of 27 October 2019, became separated from friends on Oxford Street, Darlinghurst, after a night of heavy drinking. The offender approached her while she was sitting intoxicated on steps outside a premises, engaged her in conversation, walked her a considerable distance to Turner Lane, Woolloomooloo, and sexually assaulted her in a laneway. He then fled the scene.

The offender had pleaded guilty in the Local Court and that plea was maintained in the District Court. He received a 25 per cent discount for his early guilty plea. He had one prior conviction, for assault with an act of indecency involving a young woman at Parramatta railway station in 2017.

Legal Issues

  • Whether the Form 1 offence (oral penetration) should be treated as only a slight uplift to the sentence, given it arose in the same transaction as the principal offence
  • Where on the range of objective seriousness the principal offence fell, taking into account the victim's extreme intoxication and the basis of the plea (recklessness as to consent)
  • Whether the offender's psychiatric history, including diagnosed PTSD arising from traumatic experiences in Iraq, reduced his moral culpability in a material way
  • Whether special circumstances existed to justify a departure from the statutory one-third ratio between the non-parole period and the balance of term
  • What discount applied to the sentence as a result of the early plea of guilty

Decision

Form 1 Offence: The court rejected the submission that the oral penetration offence warranted only a slight increase to the principal sentence because it occurred in the same transaction. The nature and gravity of the Form 1 conduct independently required an appropriate upward adjustment, reflecting the need for greater weight on personal deterrence and the community's entitlement to retribution for all of the offender's misconduct (at [7]-[8]).

Objective Seriousness: The court found the offence fell above the middle range of objective seriousness. The victim was severely intoxicated throughout the encounter, with an estimated blood alcohol concentration most likely 0.203 grams per 100 millilitres of blood at the time of the assault (at [55]). The court rejected the submission that the offence was opportunistic or low-range, finding instead that the offender selected a vulnerable young woman for sexual exploitation. He walked her a considerable distance from Oxford Street to a dark laneway, removed her clothing and tampon, committed both offences, and then fled, leaving her in the gutter (at [212], [220]-[223]). The aggravating factor of the victim's particular vulnerability by reason of intoxication was established under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (at [212]).

Mental Health and Moral Culpability: The court accepted on the balance of probabilities that the offender had suffered traumatic experiences in the Middle East consistent with a diagnosis of PTSD (at [219]). However, the court found the evidence insufficient to establish any causal link between his mental health condition and his decision to commit these offences (at [216]). The court also rejected the suggestion that the offender was acutely intoxicated at the time of the offences, finding his deliberate and methodical conduct throughout the evening was inconsistent with acute alcohol impairment (at [224]). The court attributed little weight to the psychiatrist's characterisation of the offending as opportunistic, preferring to describe it as exploitative (at [149]).

Special Circumstances and Sentence Structure: The court found special circumstances warranting a longer parole period than would otherwise apply under s 44 of the Crimes (Sentencing Procedure) Act 1999. Relevant factors included the offender's first time in custody, the need to encourage rehabilitation, family circumstances, language difficulties, limited support in Australia, and the constraints imposed by COVID-19 on conditions within correctional facilities (at [228]-[229]). A 25 per cent discount for the utilitarian value of the early guilty plea was applied to the sentence otherwise arrived at by synthesis of objective and subjective factors (at [4]).

Orders Made

  • Sentence of imprisonment of 7 years and 6 months, with a non-parole period of 5 years
  • Non-parole period commenced 11 November 2019, expiring 10 November 2024
  • Balance of term of 2 years and 6 months, expiring 10 May 2027

Key Takeaways

  • A Form 1 offence committed in the same general transaction as the principal offence does not automatically attract only a minimal sentence uplift; the court must assess the nature and gravity of the additional conduct independently to determine the appropriate increase (at [7]-[9]).

  • Where an offender pleads guilty on the basis of recklessness as to consent, that concession does not fix the objective seriousness of the offending at the lower end of the range; the court may still find the offence above mid-range where the surrounding conduct discloses sustained exploitation of a vulnerable victim (at [210]-[221]).

  • Diagnosed PTSD and a history of serious trauma may be relevant subjective factors on sentence, but they will carry reduced weight where the evidence does not establish a causal connection between the condition and the commission of the offence (at [206]-[207], [216]).

  • The District Court declined to treat the offending as opportunistic, distinguishing opportunism from exploitation: the offender's deliberate approach, the distance he walked the victim, and his post-offence conduct were inconsistent with impulsive or unplanned behaviour (at [149], [221]-[224]).

  • Special circumstances were found to exist beyond the mere fact of first imprisonment, with the court identifying a combination of factors, including language barriers, absence of local family support, rehabilitation prospects, and custodial hardship arising from COVID-19 restrictions, as collectively justifying a longer parole period (at [228]-[229]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Domestic and Personal Violence) Act 2007
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Filippou v The Queen [2015] HCA 29
- Imbornone v R [2017] NSWCCA 144
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Munda v Western Australia [2013] HCA 38
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSCCA 247
- The Queen v Olbrich [1999] HCA 54
- Veen v R (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14