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District Court 20 October 2023

R v SALEH

[2023] NSWDC 444

Sexual offencesAssault & violenceDomestic & family violence

Citation: R v Saleh [2023] NSWDC 444
Court: District Court of New South Wales
Date: 20 October 2023
Judge: Everson SC, DCJ

Background

The offender was convicted by a jury of 15 counts on an indictment, including sexual assault, aggravated sexual assault, assault occasioning actual bodily harm, and common assault. He was separately found guilty of five related offences transferred to the District Court under s 166 of the Criminal Procedure Act 1986. He was acquitted of the first count on the indictment.

The offending was committed against a single female victim over a period spanning from early August 2016 to 15 December 2020. The victim and the offender initially met when she brought her son to his barbershop. The relationship became a sustained campaign of sexual violence, physical assault, financial extortion, and coercive control.

The offender also faced a sentence appeal in the District Court regarding a separate stalking offence committed against a different woman in December 2021, for which a Local Court had imposed a custodial sentence of one year and four months.

Legal Issues

  • What aggregate sentence of imprisonment is appropriate for 15 counts on indictment and five related offences spanning four years of serious domestic, sexual, and physical violence?
  • How should the applicable standard non-parole periods (SNPPs) for sexual assault and aggravated sexual assault inform the indicative and aggregate non-parole periods?
  • Which statutory aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 apply to each offence?
  • Whether count 12 (aggravated sexual assault) warrants imposition of the maximum penalty of 20 years imprisonment.
  • Whether a finding of special circumstances is appropriate to adjust the ratio between the non-parole period and the head sentence.
  • How the principle of totality should be applied across a large number of discrete offences, including to the appealed stalking sentence.
  • Whether the offender's self-induced intoxication, prior clean record, personal health circumstances, and family hardship constitute mitigating factors.

Decision

Objective Seriousness and Aggravating Factors

The court assessed each offence by reference to the nature of the conduct and the applicable statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. The commission of offences in the victim's home was an aggravating factor across numerous counts (at [83]). A weapon, most commonly an electrical extension cord and on some occasions a knife, was used or threatened during the commission of multiple offences (at [84]). The assault at count 13 was further aggravated by the presence of the victim's young son (at [85]). The court found that counts 9, 11, and 12 involved planned criminal activity in an aggravating sense (at [87]), and that the injury and emotional harm caused across the course of the offending was substantial (at [88]-[89]).

Sexual Assault Offences and the Standard Non-Parole Periods

The court addressed the objective seriousness of each sexual assault offence individually. The second count (sexual assault by enforced oral sex, committed in the victim's home while the offender photographed the assault) was found to fall at or above the midpoint of objective seriousness for that offence (at [101]). Counts 3, 5, 8, and 12, each involving non-consensual penile-anal intercourse, were found to be further aggravated by the degrading nature of that act (at [103]). The court indicated non-parole periods longer than the SNPP for counts 11 and 12, on the basis that both were premeditated acts of sexual violence committed in the victim's home in the context of prolonged domestic violence, involving a weapon, no condom, and actual knowledge of non-consent (at [157]-[158]).

Count 12: Maximum Penalty

The court found that count 12, an aggravated sexual assault involving penile-anal intercourse followed by ejaculation inside the victim, after a severe beating that left her unable to see properly, warranted the maximum penalty of 20 years imprisonment (at [165]). The court concluded that the offence featured very great heinousness and was devoid of mitigating facts (at [162]). The court observed that by that point the offender had subjected the victim to over three and a half years of physical and sexual violence, had woven a web of coercive control around her, and was obtaining psychological satisfaction from dominance and gratuitous infliction of pain (at [163]).

Subjective Factors and Moral Culpability

The offender had no prior criminal history before August 2016, but the court declined to treat this as a mitigating factor given the sustained nature of the offending and subsequent re-offending while on bail (at [132]). His self-induced intoxication was excluded from mitigation by operation of s 21A(5AA) of the Crimes (Sentencing Procedure) Act (at [118]). Hardship to the offender's family was found not to be highly exceptional and so carried no mitigating weight (at [131]). The court accepted that the offender had suffered a serious assault in custody and a cardiac episode, and recommended consideration of protective custody, but found no evidence establishing more onerous conditions of imprisonment sufficient to reduce the sentence (at [124]-[129]). The offender showed no remorse, and his prospects of rehabilitation were assessed as not better than poor, with a risk of re-offending against women with whom he develops an intimate relationship (at [145]-[146]). His motive to punish the victim for perceived infidelity, whether genuinely held or pretextual, heightened his moral culpability (at [134]).

Totality and Special Circumstances

The court imposed an aggregate sentence, applying the principle of totality to avoid both a crushing sentence and any suggestion of a discount for multiple offending (at [166]-[167]). A finding of special circumstances was made, resulting in a small reduction in the ratio between the non-parole period and the head sentence, to allow for an extended period of supervision on parole and ongoing rehabilitation (at [168]). For the appealed stalking offence, the court found the Local Court sentence was just and appropriate, but varied it downward to give effect to totality (at [174]).

Orders Made

  • For counts 2 to 16 on the indictment and the five related offences on the s 166 certificate: aggregate term of imprisonment of 26 years, commencing 24 May 2021 and expiring 23 May 2047.
  • Non-parole period of 18 years, expiring 23 May 2039.
  • For the appealed stalking offence: sentence varied to a minimum term of 11 months and an additional term of 5 months, commencing 24 October 2038.
  • Non-parole period for the stalking offence expires 23 September 2039; additional term expires 23 February 2040.
  • Earliest eligible parole date across all sentences: 23 September 2039.

Key Takeaways

  • The District Court confirmed that commission of an offence in the victim's home is an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, and is not confined to cases where the offender was an intruder (at [83]).

  • Where an offender exploits a victim's genuinely held religious and cultural beliefs as an instrument of coercive control to silence reporting and sustain ongoing sexual abuse, that exploitation may heighten the offender's moral culpability and inform the assessment of objective seriousness (at [28], [133]-[134]).

  • An indicative non-parole period may be set above the SNPP where offences of aggravated sexual assault are premeditated, committed in the victim's home in the context of long-running domestic violence, involve the use of a weapon and deliberate knowledge of non-consent, and are part of a sustained pattern of coercive control (at [157]-[159]).

  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, self-induced intoxication at the time of an offence cannot be taken into account as a mitigating factor, regardless of the extent of the offender's drug and alcohol use during the period of offending (at [118]).

  • An offender's previously clean criminal record carries no mitigating weight where the offending was sustained over several years and was followed by further criminal conduct, including offending committed while on bail (at [132]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated