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District Court 7 November 2022

R v Hassenein NADERI

[2022] NSWDC 534

Sexual offences
CRIME SENTENCING THREATS TO DISSEMINATE IMAGES BUGMY FACTORS LOW IQ

Citation: R v Hassenein NADERI [2022] NSWDC 534
Court: District Court of New South Wales
Date: 7 November 2022
Judge: Lerve DCJ

Background

The offender pleaded guilty at Campbelltown Local Court in November 2021 to a large number of sexual assault and related charges involving six separate victims: three adults and three children. The offences included sexual intercourse with children aged 10 to 16, production and dissemination of child abuse material, procuring a person for prostitution, recording and threatening to distribute intimate images without consent, and intimidation. The pleas were maintained at the sentence hearing in the Downing Centre District Court in September 2022.

The sentencing exercise was described by Lerve DCJ as particularly difficult and frustrating, requiring multiple requisitions to counsel due to problems with the agreed facts. The matter involved numerous Form 1 documents (a procedural mechanism by which additional offences, taken into account on sentence without separate punishment, are attached to principal charges), and a range of competing sentencing considerations including the offender's low IQ and what are known as "Bugmy factors" (background circumstances of disadvantage relevant to moral culpability).

  • Whether the offender was entitled to the full 25% utilitarian discount for his early guilty pleas
  • How the Form 1 offences should properly be taken into account, and whether the numerical increase in sentence attributable to each Form 1 should be specified
  • Whether the Crown's approach to Form 1 quantification was consistent with established principle
  • How Bugmy factors (social disadvantage and cognitive limitations, including low IQ) should be weighed in the overall sentencing task
  • Whether special circumstances existed justifying a non-parole period that is a reduced proportion of the total sentence

Decision

Lerve DCJ confirmed the offender was entitled to the full 25% discount for the utilitarian value of his guilty pleas, which was one of the few uncontested matters at the hearing.

On the Form 1 issue, the Court addressed a submission by the Crown that appeared to invite it to quantify numerically the extent to which each Form 1 increased the sentence on the principal offence. Lerve DCJ rejected that approach firmly, citing the guideline judgment of Spigelman CJ in the Attorney General's Application No. 1 of 2002. The Court confirmed that Form 1 offences are taken into account by giving greater weight to personal deterrence and the community's entitlement to retribution, not by treating them as additional sentences. Specifying the numerical quantum of increase was described as not only inappropriate but contrary to long-established principle and practice.

The Court found special circumstances warranting a departure from the standard ratio between non-parole period and total sentence, resulting in a non-parole period of approximately 55% of the aggregate sentence. The reasons for that finding were set out in the body of the remarks. The Court also directed that a psychiatric or psychological report from Professor Woods be forwarded to the Department of Corrective Services.

For two sequences involving less serious offending (recording and procuring), the offender was released on Community Correction Orders. For all remaining sequences, the Court imposed a single aggregate custodial sentence.

Orders Made

  • The offender was convicted on all matters to which he pleaded guilty.
  • For sequences 29 (intentionally recording an intimate image without consent) and 55 (procuring a person for prostitution): the offender was released on a Community Correction Order for 2 years, on conditions that he commit no further offences and appear for sentence upon any breach.
  • For all remaining sequences: an aggregate sentence of 8 years 6 months, with a non-parole period of 4 years 8 months (approximately 55% of the total sentence, reflecting a finding of special circumstances).
  • Non-parole period: commencing 22 December 2020, expiring 21 August 2025.
  • Balance of term: commencing 22 August 2025, expiring 21 June 2029.
  • The Court recommended release to parole at the expiration of the non-parole period.
  • A copy of Professor Woods' report was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • The District Court firmly rejected any approach requiring a sentencing judge to specify numerically the extent to which a Form 1 increases the principal sentence, holding this to be contrary to the guideline judgment in the Attorney General's Application No. 1 of 2002 and inconsistent with long-established practice.
  • Under the Form 1 framework, additional criminality is accounted for by giving greater weight to personal deterrence and the community's entitlement to retribution, not by imposing a notional separate penalty or identifying a precise quantum of uplift.
  • A full 25% utilitarian discount for guilty pleas remained available and was applied, even in a matter involving serious offending against multiple victims including children.
  • Special circumstances were found to exist, resulting in a non-parole period set at approximately 55% of the aggregate sentence rather than the standard two-thirds proportion; the judgment notes that reasons for this finding were addressed in the body of the remarks.
  • Sentencing proceedings of significant complexity, involving multiple victims, multiple Form 1 documents, Bugmy factors, and low IQ, require careful attention to agreed facts and may necessitate supplementary submissions from the parties before sentence can properly be passed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 66C, 66DB, 66DD, 66EB, 91A, 91H, 91P, 91Q, 91R
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 37, 54A
- Mental Health Act 2007 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- DPP (Cth) v De la Rosa (2010) 79 NSWLR 1
- Aslan v R [2014] NSWCCA 114
- R v Alkanaan [2017] NSWCCA 56
- MC v R [2017] NSWCCA 316
- Katsis v R [2018] NSWCCA 9
- Perkins v R [2018] NSWCCA 62
- Tepania v R [2018] NSWCCA 247
- R v Irwin [2019] NSWCCA 133
- Valentine v R [2020] NSWCCA 116
- Dungay v R [2020] NSWCCA 209
- Mbele v R [2021] NSWCCA 182
- Nasrallah v R [2021] NSWCCA 207
- Toller v R [2021] NSWCCA 204
- R v Van Ryn [2016] NSWCCA 1
- R v PGM (2008) 187 A Crim R 152
- Burchell (1987) 34 A Crim R 148
- R v Muldoon (unreported, NSWCCA, 13 December 1990)