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District Court 4 April 2024

R v Khouri

[2024] NSWDC 581

Sexual offences
CRIME SENTENCE S 61I CRIMES ACT MAXIMUM PENALTY 14 YEARS IMPRISONMENT 10 DAY JURY TRIAL SERIOUS PHYSICAL DISABILITY

Citation: R v Khouri [2024] NSWDC 581
Court: District Court of New South Wales
Date: 4 April 2024
Judge: Tupman DCJ

Background

In November 1998, the offender pulled a 23-year-old New Zealand woman off the street in the Lidcombe/Auburn area while she was walking home. She was dragged into a car by a stranger, driven to a nearby park, and subjected to penile vaginal intercourse without her consent for less than ten minutes. She was born without a left hand and part of her left forearm.

The victim attended Auburn Hospital immediately after the assault on foot, and a Sexual Assault Investigation Kit was completed. Semen and sperm were recovered, producing a DNA profile, but police could not identify the offender at the time. The victim returned to New Zealand within weeks without making a formal statement.

Twenty-two years later, in October 2020, the offender provided a buccal DNA sample to police for an unrelated matter that did not proceed to charges. His profile matched the vaginal swabs and underwear from 1998. He was arrested and stood trial in 2023, after which the jury convicted him of the statutory alternative offence of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), acquitting him of the aggravated version (which required a finding that the victim had a "serious physical disability").

  • What was the appropriate level of objective seriousness for the offence, including whether the victim's physical disability aggravated the conduct at the sentencing stage?
  • What weight should be given to the offender's subjective circumstances, including his age at the time, family situation, employment history, and subsequent offending?
  • What sentence length and non-parole period were appropriate, including whether special circumstances existed to justify a non-parole period shorter than the statutory ratio?
  • Which maximum penalty and standard non-parole period applied, given the offence occurred in 1998?

Decision

Objective seriousness: Tupman DCJ assessed the offending as slightly above the middle range of objective seriousness for s 61I offences. The conduct was described as brazen and spontaneous: the offender abducted the victim from a public street in daylight, took her to a park with an accomplice driver, and committed the assault while pinning her to the ground. Physical injuries were minor and transient. The Crown submitted that the victim's disability aggravated the offending, but the court rejected that submission. The jury had found the disability did not constitute a "serious physical disability" for the purposes of the aggravated charge, and the victim herself gave evidence that she lived life fully despite her condition and was not a person who embellished her account. The court accepted her as an impressive and credible witness, but declined to treat her as a "vulnerable" victim for sentencing purposes on the basis of her disability alone.

Applicable law: Because the offence occurred in 1998, the court applied the maximum penalty of 14 years imprisonment that was in force at that time. Consistent with s 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing patterns and practices are assessed by current standards, but no standard non-parole period applied because none existed for this offence in 1998.

Subjective case: The offender was 20 at the time of the offence with no prior convictions. He was now 45, had been married for 19 years, had five children, and maintained a consistent work history. The court noted subsequent offending including animal cruelty matters. He had acknowledged the victim's trauma. He experienced depression and post-traumatic stress symptoms following his incarceration and expressed concern for his family. The court gave these matters appropriate weight but balanced them against the seriousness of the offence and the purposes of sentencing, particularly general deterrence and rehabilitation.

Special circumstances: The court found special circumstances, resulting in a non-parole period equal to half the total sentence rather than the standard two-thirds. This reflected the offender's need for supervised reintegration into the community given his extended period of custody and the circumstances of his case.

Orders Made

  • The offender was convicted of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).
  • Sentenced to a total term of imprisonment of 6 years, commencing 11 October 2023 and expiring 10 October 2029.
  • Non-parole period of 3 years, commencing 11 October 2023 and expiring 10 October 2026.
  • Parole period of 3 years, commencing 11 October 2026 and expiring 10 October 2029.
  • The offender was advised of his status under the Crimes (High Risk Offenders) Act 2006 (NSW), including the possibility of an extended supervision order application by the Director of Public Prosecutions.

Key Takeaways

  • A jury's acquittal on an aggravated charge does not automatically convert a victim's physical characteristic into an aggravating factor at sentencing; the District Court here declined to treat the victim's disability as an aggravating matter after the jury found it did not meet the statutory threshold.
  • Under s 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW), offenders sentenced for historical offences are subject to the maximum penalty and any standard non-parole period that applied at the time of the offence, even though current sentencing patterns and practices govern the exercise of discretion.
  • DNA evidence obtained from a buccal swab taken in connection with an unrelated and uncharged matter was capable of grounding a conviction 22 years after the original assault, illustrating the continuing forensic utility of historical SAIK samples.
  • Conviction for a s 61I offence brings an offender within the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW), which carries the possibility of extended supervision orders beyond the sentence imposed.
  • In finding special circumstances, the court reduced the non-parole period to half the total term, departing from the standard two-thirds ratio, to allow for adequate supervised parole following a lengthy custodial term for an historical offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 21B, 47
- Crimes (High Risk Offenders) Act 2006 (NSW): s 25C
- Prevention of Cruelty to Animals Act 1979 (NSW)

Cases:
- R v Coleman [2019] NSWDC 285