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District Court 11 July 2022

R v Aslan

[2022] NSWDC 741

Sexual offences
CRIMINAL SENTENCE DRUNK/DRUGGED COMPLAINANTS MIDRANGE OF OBJECTIVE SERIOUSNESS VICTIM IMPACT STATEMENTS SNPPS

Citation: R v Aslan [2022] NSWDC 741
Court: District Court of New South Wales
Date: 11 July 2022
Judge: King SC DCJ

Background

The offender was convicted by jury of three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), knowing the complainants were not consenting. The offences involved two separate complainants, identified as NC and AW, both of whom were young women new to Australia and contacted through the online travel and hospitality application Couchsurfing.

In each case, the offender employed a similar pattern: he met the complainant through Couchsurfing, persuaded her to consume significant quantities of alcohol before going out ("preloading"), and took her to Hyde Park. Both NC and AW had communicated clearly to the offender that they had no romantic or sexual interest in him. In both cases, the offender had sexual intercourse with the complainant when she was unconscious or asleep as a result of alcohol consumption.

The offences against NC comprised two counts: one in Hyde Park while she was unconscious, and one the following morning at his accommodation while she physically resisted and verbally protested. The offence against AW occurred at his accommodation after she lost consciousness due to alcohol. The jury returned guilty verdicts on all three counts in January 2021, and sentencing was significantly delayed by the withdrawal of trial counsel, difficulties obtaining new representation, and the ongoing impact of COVID-19 on court operations and the availability of expert reports.

  • The appropriate level of objective seriousness for each of the three offences
  • Whether offences involving an unconscious or asleep complainant are less serious than offences involving physical resistance, as submitted by defence counsel
  • The relevance and weight of victim impact statements
  • The application of standard non-parole periods (SNPPs) of seven years for each offence
  • The weight to be given to subjective matters, including the offender's personal circumstances, mental health, and conditions of custody
  • Whether the absence of remorse and contrition affected prospects of rehabilitation
  • How the principles of concurrency and totality should apply to produce an aggregate sentence across three offences involving two victims

Decision

King SC DCJ assessed the three offences as being in the mid-range of objective seriousness. His Honour expressly rejected the submission that counts involving an unconscious complainant were less serious than the count involving physical resistance. The court held that intercourse with a person who cannot consent because they are unconscious or asleep is, in itself, an act of violence. The court observed that, in some respects, such an offence may be worse for the complainant than one where they are conscious and able to resist.

His Honour noted the similarity of approach across all three offences: the use of Couchsurfing to meet vulnerable young women abroad, deliberate preloading with alcohol, and the common setting of Hyde Park. This pattern, involving two victims on separate occasions, was a significant aggravating feature. Both complainants suffered high levels of emotional trauma and psychological harm, as reflected in their Victim Impact Statements.

On subjective matters, the court found no evidence of remorse or contrition from the offender, and concluded that, in those circumstances, there were no reasonable prospects of rehabilitation. The court acknowledged the harshness of the offender's conditions in custody, including periods of full lockdown during COVID-19 and a period of COVID isolation when he tested positive, and took these into account.

Applying the principles of totality, his Honour imposed an aggregate sentence to reflect the fact that there were three distinct offences against two separate victims. The indicative head sentence for each count was eight years with an indicative non-parole period of six years (one year below the SNPP). The aggregate sentence was set at 12 years' imprisonment with a non-parole period of nine years.

Orders Made

  • Aggregate sentence of 12 years' imprisonment
  • Non-parole period of nine years
  • Indicative sentence per count: eight years' imprisonment with a six-year non-parole period

Key Takeaways

  • The District Court held that sexual intercourse with a complainant who is unconscious or asleep and therefore unable to consent is, in itself, an act of violence, and is not to be treated as less serious than an offence involving active physical resistance.
  • A pattern of similar conduct across multiple offences and victims, including a consistent method of approach and the deliberate use of alcohol to incapacitate complainants, constitutes significant aggravation at sentence.
  • Where an offender shows no remorse or contrition, a sentencing court may find no reasonable prospects of rehabilitation, with corresponding weight given to considerations of deterrence and protection of the community.
  • Applying the principle of totality, the existence of multiple offences against more than one victim required meaningful accumulation of sentences beyond what a single indicative term would reflect.
  • Delays in sentencing attributable to COVID-19, changes in legal representation, and difficulty obtaining expert reports were acknowledged as contextual matters, but did not alter the ultimate sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)

Cases:
No cases were cited in the provided text of the judgment.