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1. Mohammadiman Aghahosseini is to be sentenced after pleading guilty to five series of criminal offences. The most serious are sexual offences committed against a young man on 9 November 2022. In that matter, the offender has pleaded guilty to four counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). He has also admitted two acts of indecency without consent contrary to s 60(1) of the Crimes Act against the same victim. He asks the Court to take those additional offences into account in sentencing him for the sexual assaults, as allowed under part 4.4 of the Crimes (Sentencing) Act 2005 (ACT).

2. The maximum penalty for the offence of sexual intercourse without consent is imprisonment for 12 years. The maximum penalty for an act of indecency without consent is imprisonment for 7 years.

3. The remaining four series of offences are primarily offences of personal violence and dishonesty. It is convenient to identify those offences in the discussion of their circumstances, to which I now turn.

Circumstances of the offending

4. The offender is to be sentenced by reference to an agreed statement of facts, the relevant parts of which are summarised below. I also include my assessment of the objective seriousness of the offences in that discussion.

5. Contrary to the approach taken in the material provided by the prosecution, I find it clearer in a case involving so many offences to address the facts in chronological order. Accordingly, I begin with series 2.

Series 2: robbery and theft from an employer

6. The offences in series 2 were committed on 24 October 2022. In respect of the events of that day, the offender has pleaded guilty to one count of robbery contrary to s 309 of the Criminal Code 2002 (ACT) and one count of theft contrary to s 308 of the Criminal Code.

7. The maximum penalty for robbery is imprisonment for 14 years. The maximum penalty for theft is imprisonment for 10 years. Each offence also carries a fine as an alternative but that would not be an appropriate penalty in the present case.

8. The victim of those offences is Mr Santhosh Abraham. As at 24 October 2022, the offender had been working for him for four days. That day, they went in the victim’s car to collect the offender’s tools. They then went to a service station. On the way there, the offender asked the victim for money. The victim responded saying he did not want to discuss money as it was not the time.

9. When they arrived at the service station, the topic of money was raised again. During the conversation, the victim was holding his iPhone 11 Max Pro. While the victim was removing his seatbelt, the offender grabbed the iPhone with both hands. The victim tightened his grip on the iPhone and held onto it while the offender attempted to leave with the iPhone.

10. This struggle resulted in the offender dragging the victim through the front passenger door while the victim held onto the iPhone. Eventually, the victim fell to the ground still holding the iPhone. The offender then pushed the victim in the face and kicked him in the lower leg. The victim lost his grip on the iPhone but continued to hold onto the offender’s shirt. The offender took his shirt off and fled with the victim’s iPhone. Those acts constitute the robbery (CC2023/3082).

11. After providing a statement to police, the victim checked his internet banking accounts and found that $7,040 had been transferred from his account to a third party. The victim contacted the third party, who was able to return approximately $3,000 to the victim. The remaining $4,040 had been provided to the offender. The transfer of those funds out of the victim’s account constitutes the theft (CC2023/3083).

12. The value of the property taken in these offences was over $7,000, of which the offender received the benefit of more than $4,000. The offender has admitted to significant drug use at the time which presumably reflected an addiction. It may be inferred that his offending was motivated at least in part by the needs created by that expensive medical condition. I will return to consider the offender’s mental health at that time.

13. The offences do not appear to have involved any significant planning or premeditation. They involved an abuse of the trust of the relationship of employment, but that relationship was not one of any longevity and accordingly I do not place any weight on that factor. The robbery involved actual violence and must have been quite confronting for the victim. It was nonetheless not the most serious of offences of this kind, which can involve considerably more grave confrontations. The theft was an offence of more than minor seriousness having regard to the large amount involved and the fact that it was stolen from an individual.

14. The offender was granted bail in the Magistrates Court on 4 November 2022 on a non-related charge. Accordingly, all of the remaining offences were committed whilst the offender was on conditional liberty. That does not aggravate the objective seriousness of any individual offence but it is an aggravating factor in determining the appropriate sentences to be imposed.

Series 1: sexual assaults committed on 9 November 2022

15. The sexual assaults were committed on 9 November 2022. The offender and the victim came into contact on Grindr, a hookup social media application. The victim was 19 years old at the time. The offender was 37. The offender sent the victim a message in the early morning offering him $200 to $250 to meet the offender in person and undress while the offender masturbated. The victim agreed and drove to where the offender was staying, arriving at around 3:30 am.

16. They spoke for a while before the offender started taking the victim’s shirt off and began kissing and biting his neck and nipples. The victim said words to the effect, “no, that’s not what we talked about”. The offender responded, “please baby, you’re so pretty”. The victim again said “no”, and the offender withdrew. This conduct constituted the first act of indecency on the schedule of offences to be taken into account (SCCAN2023/385).

17. The offender smoked a glass pipe. The victim perceived that the offender “got high” from smoking. The offender then approached the victim and took off the victim’s pants and socks. The offender gestured towards the bed. The victim responded, “I thought I was just going to sit here”. The offender said, “no, come”, grabbed the victim by the wrist and yanked him towards the bed.

18. The offender put the victim on the bed and hugged him. The offender then began taking his own clothes off. The victim said, “no, this is not how it’s going to be”. The offender started kissing the victim’s back and the victim said “no. Like, stop. Like, this is not what I came here to do. Like I needa leave, I have, like, an appointment tomorrow, I needa go”. The offender convinced the victim to stay for an hour in exchange for $200.

19. The offender continued to kiss the victim’s torso and cheeks, before pushing the victim onto the bed so the victim was lying on his back. The offender cuddled the victim while grabbing the victim’s skin around his neck with his teeth, sucking and twisting it. The victim squirmed and audibly expressed his pain.

20. The offender continued kissing the victim before saying, “come on baby, roll back over”. The victim said “no” and “you’re not penetrating me”. The offender pushed the victim on his side, spitting on the victim’s anus before putting at least one finger inside for about 10 seconds. The victim was in pain and asked the offender repeatedly to “stop” while pushing the offender’s hand away. The offender continued to kiss the victim.

21. The victim decided it would be easier to expedite the event and began stimulating the offender’s penis. After a while, the offender stopped the victim, saying, “no, not yet”. The offender continued to penetrate the victim’s anus with his finger, while the victim repeatedly asked the offender to “stop”.

22. The offender then climbed onto the victim’s back, putting his penis between the victim’s buttock cheeks and moving in a back-and-forth motion. The offender then forcefully penetrated the victim’s anus with his penis, causing the victim substantial pain. The victim asked the offender to “stop” about 15 to 20 times. The offender said “no”, and slammed the victim’s head into the pillow, placing his right hand over the victim’s mouth. After about 10 minutes, the offender removed his penis from the victim’s anus. The first charge of sexual intercourse without consent is a rolled-up count that includes both the digital and penile penetration of the anus (CC2023/5564).

23. The offender retrieved his glass pipe, pulling out a bag of crystals, which he placed in the pipe and smoked. The victim sat up from the edge of the bed, and the offender sat next to him, asking the victim if he wanted to smoke the pipe. The victim declined. The offender placed his hand on the victim’s thigh and told the victim to try it, squeezing tighter as he made the demand. Feeling pressured, the victim smoked the pipe.

24. Sometime after, the victim lay backwards on the bed. The offender then stood over the victim and opened the victim’s mouth. The offender grabbed the back of the victim’s head with both hands, inserting his penis into the victim’s mouth, and thrust back and forth. Shortly after, the offender ejaculated over the victim’s chest and collarbone. This conduct constituted the second count of sexual intercourse without consent (CC2023/5566).

25. At approximately 5:00am, the victim told the offender he had had to leave at 6:00am to attend an appointment. The offender exchanged phone numbers with the victim and then stood up, retrieving a pocketknife from a shopping bag lying nearby. The offender told the victim to wait while the offender took a shower. The victim got dressed and took the opportunity to take photos of the room and a card in a name other than that of the offender.

26. Shortly afterwards, the offender returned and informed the victim that he did not have the money to pay the victim. Shortly after 6:00am, the offender led the victim out of the building, and followed the victim to his car. The offender asked the victim for a lift to work, where he would be able to pay the victim. The victim agreed.

27. While in the vehicle, the offender used the pocketknife to point directions for the victim to take. After a couple of stops, they agreed that the victim would provide his bank details, which the offender would pass to his boss to arrange payment. I note that, having regard to the events in series 2 to which I have referred (the robbery of the employer), it is doubtful whether the offender in fact had the capacity to arrange payment in that way but I cannot be satisfied of that fact beyond reasonable doubt and so must put it aside. The victim then drove the offender back to his accommodation.

28. Back at the accommodation, the offender asked the victim inside to look at some items he wanted to sell. When they got to the room, the offender forced the victim to undress. The victim told the offender he felt sick and needed to leave. The offender asked what type of pornography he liked and lay down next to the victim watching porn on his phone.

29. The offender then got on top of the victim and put his finger and then his penis in the victim’s anus. The victim was clenching his anus and closed his legs together, and the offender penetrated the inner thighs of the victim. The offender then flipped the victim over and penetrated the victim’s anus with his penis. This conduct constituted the third count of sexual intercourse without consent, which is also a rolled-up count involving digital and penile penetration (CC2023/5567).

30. The offender then smoked from his pipe again and then went to the bathroom. The offender returned and attempted to force the victim to perform oral sex on him. The offender opened the victim’s mouth and inserted his penis inside for several seconds. The offender told the victim to “suck”, but the victim did not want to. The offender removed his penis from the victim’s mouth and slapped the victim on the face twice before reinserting his penis into the victim’s mouth. Shortly after, the offender removed his penis from the victim’s mouth. The two acts of oral intercourse constituted the fourth charge of sexual intercourse without consent (SCCAN2024/6).

31. The offender then began spitting on the victim and biting his nipples, neck and face. The offender attempted to kiss the victim on the lips, but the victim did not move his lips. This constituted the second act of indecency on the schedule (SCCAN2023/388).

32. The offender then went into his Instagram app and found the victim’s profile. The offender looked through the victim’s followers, inquiring as to whether any of the victim’s friends would be interested in a threesome. The victim said he didn’t know.

33. Shortly after, the offender became distracted with logging on to his Optus account. The offender asked the victim for help. The victim suggested they go to the Optus store when it opened. The offender asked the victim to drive him there. They arrived just before opening time. While the offender was seeking assistance from a staff member, the victim ran away and went to a nearby Apple Store where a staff member contacted security. Security guards escorted the victim to his car and he drove straight to police. He was medically examined later that day and his injuries were documented.

34. It is necessary to make an assessment of the objective seriousness of the sexual offences. For that purpose, I must make a finding as to the offender’s state of mind concerning the absence of consent. Section 54(3) of the Crimes Act provides that, for the purposes of that section, proof of knowledge or recklessness is sufficient to establish the element of recklessness. Recklessness can be proved in any one of three ways: if the offender knew the victim was not consenting; if he realised there was a possibility that he was not consenting and proceeded anyway or if he did not consider whether he was consenting or not.

35. I am satisfied beyond reasonable doubt that the offender knew the victim was not consenting to any of the sexual acts committed against him by the offender. The victim had messaged the offender on Grindr that he was “not getting fucked”. He repeatedly told the offender to “stop” and both physically and verbally protested against the offender’s conduct. The offender’s knowledge of lack of consent is a factor that increases the objective seriousness of the offences. It is also relevant to have regard to the fact that the sexual intercourse was unprotected, exposing the victim to the risk of communicable disease.

36. The following further facts relied upon by the prosecutor are relevant in assessing objective seriousness. For the first count of sexual intercourse without consent (CC2023/5564), the offender persisted despite the victim telling him to stop numerous times. The victim suffered extreme pain. The offender used force by slamming the victim’s head into a pillow and placing his hands over the victim’s mouth.

37. For the second count of sexual intercourse without consent (CC2023/5566), the prosecutor relied on the fact that the offender stood over the victim and grabbed the victim’s head to manipulate the offending, the fact that the assault caused physical discomfort and the fact that the offender forced the victim to consume drugs.

38. For the third count of sexual intercourse without consent (CC2023/5567), the prosecutor relied on the fact that the offending occurred despite the victim’s clear physical resistance and after the offender had produced a knife and maintained it with him during the trip to the shopping centre.

39. For the fourth count of sexual intercourse without consent (SCCAN2024/6), the prosecutor relied on the fact that the offending involved acts of physical violence and the sexual act caused the victim to be physically ill.

40. For the acts of indecency without consent (SCCAN2023/385 and SCCAN2023/388), the prosecutor relied on the fact that the offences involved skin on skin acts of indecency and acts of sexual violence and that they caused pain and injury to the victim.

Impact on the victim

41. I am required to consider the effect of the offences on the victim and his family, as addressed in victim impact statements provided by him and his father: ss 33(1)(f) and 53(1)(a) of the Crimes (Sentencing) Act. The victim chose not to have his statement read out in open court but has indicated that he does not object to its being referred to in this judgment.

42. The statement confirms what may be inferred in any event from the circumstances of offences in which the victim was subjected to a truly horrific experience at the hands of an older, stronger, violent, drug-affected man. Unsurprisingly, the offences have had a significant impact on all aspects of the victim’s life. He has been unable to work in public-facing roles and has struggled to communicate and maintain relationships with family and friends. He described being “robbed of [his] youth, dreams and goals”. He has been diagnosed with post-traumatic stress disorder, but states that “this is just a label” which does not help when he feels suffocated, “reliving the assault each night”.

43. The victim’s father has described his son as being “withdrawn from life”. Before the offending, he had a “strong social network and social life” and was generally positive about life. His father describes him now “as being the opposite of what he was”. He eats infrequently and has lost 10 kilograms in weight since the offences.

44. We educate our young people to engage in open conversation about the sexual activity to which they do and do not consent. The victim in the present case did just that. His careful articulation of what he was agreeing to was cynically ignored by the offender, who turned what should have been a consensual experience into a violent nightmare for the young victim.

45. In summary, the offender subjected the victim to a sustained, menacing attack in which the victim endured pain and humiliation involving both threatened and actual violence. His clear and persistent protests were ignored. There was a significant age disparity between the two men and an obvious disparity in power. I would assess the sexual offences to be very serious.

Series 3: burglaries, thefts and assault of a former friend

46. In series 3, the offender has pleaded guilty to two counts of burglary contrary to s 311 of the Criminal Code, two counts of theft contrary to s 308 of the Criminal Code and one count of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act for conduct occurring on 10 November 2022.

47. Leaving aside the theoretical availability of a fine, which would be out of the question here, the maximum penalty for burglary is imprisonment for 14 years and the maximum for theft is imprisonment for 10 years. The maximum penalty for assault occasioning actual bodily harm is imprisonment for 5 years.

48. The victim of those offences is Mr Sundeep Vij. He had previously been friends with the offender but had blocked the offender’s phone number after feeling harassed by the offender’s requests for money.

49. On the afternoon of 7 November 2022, the victim entered his bedroom to find the offender standing there. The entry into the victim’s home constitutes the offence of burglary (CC2022/11116).

50. The offender told the victim that he was upset about losing contact with him. The victim asked the offender to leave, which evidently he did.

51. The victim started work at 5:00pm that afternoon. Shortly after he left for work, the offender re-entered the victim’s house and entered the victim’s bedroom where he stole an iPhone 6 and an iPhone 6S. The victim’s roommate saw him but assumed he was entitled to be there. The theft of the two iPhones constitutes the first offence of theft (CC2022/11118).

52. At approximately 11:00pm that day, the victim returned to his address and realised that the phones were missing. The roommate informed the victim of what he had seen.

53. At approximately 11:52am on 8 November 2022, the victim received a phone call from an unknown phone number and the caller identified himself as the offender. The offender told the victim he was in the city. The victim asked if the offender had the iPhones, to which the offender responded, “yes, come fast, I’ll give them to you”.

54. Shortly after, the victim met the offender at Civic Square. The victim asked the offender to return the iPhones, and the offender complied. The victim asked the offender why he had taken the phones, to which the offender replied “I could have taken other things. Your iPad, your laptop, but I only took these to teach you a lesson”. The parties then left the location.

55. Following these events, the victim bought a door lock to secure his bedroom door. He also informed his roommates that the offender was not allowed on the premises.

56. On Thursday 10 November 2022, the victim secured his bedroom before leaving for work in the morning. Shortly after, the offender arrived at the victim’s address and walked through the unlocked front door. The offender also managed to break into the victim’s locked bedroom. This constituted the second burglary offence (CC2022/11115).

57. The offender used a Tommy Hilfiger laptop bag he found in the victim’s bedroom to hold a number of stolen items belonging to the victim. This included an Apple iPad mini and box, a Lenovo laptop, three Apple iPhones, an Oppo phone, an Apple Watch, a black wallet with cards in the name of the victim, a variety of charging cables, and letters and documents addressed to the victim. This constituted the second theft offence (CC2022/11119).

58. The offender then took and put on a Nike jacket hanging in the victim’s cupboard. The offender then left the premises.

59. At approximately 11:00am, the victim was driving along Horse Park Drive in Harrison, ACT, and saw the offender running down the street. The victim identified that the offender was wearing his Nike jacket and carrying the Tommy Hilfiger laptop bag. The victim stopped his vehicle and stopped the offender.

60. The offender said, “don’t come near me. You did something to my phone. You tell me honestly what you did, or I will hit you”. The victim responded, “I didn’t do anything to your phone. Give me my stuff back”.

61. The victim asked the offender to accompany him to the Gungahlin Police Station. The offender agreed and entered the victim’s vehicle.

62. Shortly after driving off, the offender struck the victim in the head with his hand. The victim stopped the vehicle, and the offender exited the vehicle, walking in the opposite direction.

63. The victim caught up with the offender and asked him to return his things. He then reached out and grabbed the strap handle of the laptop bag. The offender turned and attempted to hit the victim. The victim avoided the offender. The offender struck again and connected with the back of the victim’s head causing him to bleed. That act constitutes the offence of assault occasioning actual bodily harm (CC2022/11117). Upon being struck, the victim released his grip on the bag. The offender walked away.

64. The victim drove directly to the Gungahlin Police Station and provided a statement. Police used the Find My iPhone application to track one of the stolen iPhones and locate the offender.

65. At approximately 12:40pm, police arrested the offender for suspicion of robbery. The offender was conveyed and lodged at the ACT Regional Watch House, where he participated in an interview with police. He made some admissions of attempting to assault the victim but denied striking the victim. Police were unable to substantiate a robbery offence and so released the offender from custody.

66. On 11 November 2022, the victim supplied a supplementary statement to police detailing the events that had occurred. Police located the offender at approximately 2:10pm that day and he was arrested and charged for burglary, theft and the assault offences. The offender was conveyed and lodged at the ACT Regional Watch House.

67. The prosecutor addressed the objective seriousness of these offences by reference to the factors listed R v Hancock [2021] ACTSC 52 at [33]. The prosecutor submitted that the offences are more serious for having been committed inside the victim’s home, although there was no damage or vandalism to the home. The burglary offences were clearly premediated as they targeted the offender’s former friend. They involved repeated incursions to the victim’s home over a short duration of time. The value of the stolen property is unknown but included significant items such as the victim’s passport. I accept those submissions. The offences were objectively serious but were not the most serious of their kind.

68. The prosecutor further submitted that the offender was driven by an aspect of control or revenge. That submission must be considered in light of the evidence of the offender’s mental condition. As I will explain in my discussion of the evidence on that issue, the assessment of the offender’s motivation for the offences is complicated by his poor mental health at the time. That is relevant to the degree of responsibility the offender bears for the offences.

69. For the offence of assault occasioning actual bodily harm, the prosecutor relied on the fact that the offending occurred while the victim was trying to retrieve property the offender had stolen from him and the fact that the victim sustained multiple injuries caused by multiple strikes to his head resulting in bleeding. The assault was one of considerable seriousness.

Series 4 – escape from the Mental Health Unit

70. Series 4 is an offence of escaping from arrest or custody contrary to s 160 of the Crimes Act (CC2022/11432). The maximum penalty for this offence is 100 penalty units, imprisonment for 5 years or both.

71. Following the series 3 offences, the offender was arrested. On 12 November 2022, he appeared before the ACT Magistrates Court where he was remanded and placed on a s 309 order of the Crimes Act for a mental health assessment. He was transported to the Adult Mental Health Unit (AMHU) at Canberra Hospital for that purpose.

72. Police attended AMHU the following day and were informed that the offender had escaped from the facility. Closed-circuit television footage revealed that he had left the hospital through an unlocked sliding door which he had accessed via a staff corridor.

73. The prosecution fairly acknowledged that this was not a serious offence of its kind. It involved no threat or injury to any person and no damage to property. It involved no planning or deception. The offender simply walked out the staff exit. Conversely, I must have regard to the fact that he then fled to Sydney, with the result that the police had to travel there to extradite him. I would nonetheless regard this offence as a relatively minor offence of its kind.

74. In the context of the escape offence, the prosecutor drew my attention to s 72 of the Crimes (Sentencing) Act, which provides: 72 Concurrent and consecutive sentences—offences while in custody or unlawfully absent (1) This section applies if the primary sentence is imposed on the offender for any of the following offences: (a) an offence committed while the offender was in lawful custody; (b) an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment; (c) an offence involving an escape from lawful custody. Example of unlawful absence for par (b) the offender fails to return to a correctional centre as required after community service work or approved leave (2) In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment. (3) The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence. (4) Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.

75. The prosecution submissions proceeded on the assumption that s 72 applies where an offender escapes whilst on remand, that is, before being sentenced to any term of imprisonment. It is not clear to me that the section is to be construed in that way. Section 72(2) requires the primary sentence (the sentence imposed for the escape) to be served consecutively with the existing sentence of imprisonment. One possible construction of the section is that it only applies to a sentence that existed at the time of the escape. At the time the present offender escaped, there was no existing sentence of imprisonment, as he was on remand.

76. I did not identify that alternative construction at the time of the sentence hearing and the parties have not been heard on that issue. However, it is not necessary to resolve the question because, on the assumption that the section applies in the present circumstances, I am satisfied that it is appropriate, in light of the nature of the offence and the offender’s state of mental health at the time, to direct that the sentence for the escape be served concurrently with other sentences to be imposed.

Series 5 – obtaining property by deception from another friend

77. Series five is an offence of obtaining property by deception contrary to s 326 of the Criminal Code (CC2022/11948). The maximum penalty for that offence is 1000 penalty units, imprisonment for 10 years or both.

78. The victim of this offence is another friend of the offender, Mr Mohammad Nemati. On 14 November 2022, after escaping from the Mental Health Unit, the offender went to the Mr Nemati’s workplace asking for help. They had a discussion and then the victim drove the offender to a nearby mall, before dropping the offender off on Moore Street, Canberra.

79. Unknown to the victim, the offender took the victim’s credit card from the victim’s car and used the card to purchase a bus ticket from Canberra to Sydney at the Jolimont Tourist Centre. The offender then returned the card to the victim’s car without the victim’s knowledge. The offender returned to the Jolimont Tourist Centre and departed Canberra on a bus to Sydney that afternoon.

80. This was an offence of relatively minor seriousness. Taken alone, it does not warrant the imposition of a term of imprisonment. In all the circumstances, I consider it inexpedient to impose any additional penalty for the offence. That is not to overlook the imposition upon and inconvenience for the victim, but only to recognise the place this offence holds in the context of the whole of the offending for which the offender is to be sentenced today.

Arrest and Extradition

81. NSW Police located and arrested the offender at the Sydney Central Railway on 5 December 2022. He was extradited to the ACT on 6 December 2022.

Circumstances of the offender

82. I am required to consider the personal circumstances of the offender. These are addressed in the pre-sentence report.

83. The offender is now 39 years old. He was born in Iran and migrated to Australia in 2013, hoping to create a better life. He originally lived in Melbourne before moving to live in Sydney for eight years. He lived in Canberra for two years before being remanded in custody.

84. He has had unstable accommodation while living in Canberra, spending only a couple of months in a variety of share houses. He has worked as a painter for eight years but ceased working in 2021 due to his illicit substance abuse.

85. The offender has a positive relationship with his mother, but his family remains in Iran. He has one friend who continues to provide financial support, but has limited supports in Australia, and is not engaged in any pro-social activities in the community. He has said he intends to return to Iran upon leaving custody to return to his family.

Psychiatric report

86. The prosecution tendered a report from Dr Anthony Barker, forensic psychiatrist, dated 15 August 2023. Dr Barker assessed the offender in person at the Alexander Maconachie Centre with the assistance of a telephone interpreter. He was accompanied at the assessment by a clinical psychologist, Ms Sarah Gosper.

87. Dr Barker’s report was prepared before the offender pleaded guilty to any of the offences. The sources of information available to Dr Barker did not include the statement of facts tendered at the proceedings on sentence or indeed any account of the facts alleged against the offender. In that circumstance, and in the absence of any updated report that takes account of the facts the offender now admits, it is difficult to know what weight can properly be placed on the opinions expressed.

88. In respect of the robbery and theft offences committed against the offender’s former employer, the offender told Dr Barker that he was having a lot of thoughts at that time that someone was watching him. He said that he was using methamphetamine daily at that time and “thought he was defending [his] own life”. He gave a similar account of the offences of burglary and theft committed on 7 and 10 November 2022, saying “I was under surveillance, they put cameras in my life”. He said that someone had hacked his phone and that he “kept changing handsets”. He denied committing the sexual offences.

89. The offender’s explanation to Dr Barker of thinking he was being watched or listened to does not provide any explanation for the sexual offences, nor does it explain all of his other offending. The agreed facts indicate that, until at least 10 November 2022, the theft offences appear to have been motivated primarily by the need for money rather than by any delusional ideation. I note in that context that, on 9 November 2022, the offender invited the victim of the sexual offences back into his apartment because he said he had some items he wanted to sell.

90. I accept that, by 10 November 2022, the offender’s conduct as recorded in the agreed facts resonates with the kind of paranoid ideation described by Dr Barker, particularly his insistence that his friend had done something to his phone. The difficulty is to know whether that was a manifestation of drug-induced psychosis or psychotic illness. The psychotic symptoms might be much the same, but the difference is important in the assessment of the degree of the offender’s responsibility for the offences.

91. Dr Barker undertook a brief review of the “diagnostic impressions” of other practitioners who have seen the offender since 28 October 2022 as recorded in the offender’s mental health records. During the period of his involuntary detention, most practitioners recorded an impression of drug-induced psychosis with a differential diagnosis of psychotic illness. On 20 December 2022, a psychiatry registrar recorded the following: He has been released from involuntary detention earlier this day. In each of his admissions, his psychotic symptoms have rapidly resolved in a drug free environment, and he has quickly gained insight into the role that illicit substances play on his mental state, indicating to the team his commitment to not use substance. He currently, clearly, has capacity and insight, and is able to make his own decisions regarding what care he wishes to receive from our service. He presents as intelligent and resourceful. Ongoing admission as a voluntary patient may have been helpful to sort out his social issues and guarantee he has the next depot, however there are no grounds to do this on an involuntary basis. Of paramount importance; Iman must take responsibility for his drug use and his own health care if there is to be a reasonable prospect of mitigating the risk of future psychotic episodes.

92. The discharge summary of the same date recorded a diagnosis of drug-induced psychotic disorder.

93. However, on 15 February 2023 and again on 2 March 2023, two different psychiatrists noted that increasing psychotic symptoms in the (presumed) absence of recent illicit substance use suggested the need for the offender’s illness to be treated as schizophrenia. Dr Barker agreed, expressing the opinion “with reasonable medical certainty” that the offender has a psychiatric diagnosis most consistent with schizophrenia.

94. The fact that Dr Barker has not had the opportunity to consider whether the agreed facts would cause him to revise his opinion causes me some concern. Conversely, given that his opinion was based on the history he obtained, and his report has been tendered by consent and not challenged by either party, it should not be dismissed lightly: Devaney v R [2012] NSWCCA 285 at [88] (Allsop P, with whom Price J agreed at [101]). As was observed in that case, part of the professional skill of the psychiatrist is the assessment of the history. It is notable in that context that Dr Barker declined to express any opinion as to any potential connection between the offender’s conduct and his mental impairment in relation to those offences he had not admitted.

95. As to the offences committed on 24 October 2024 against the offender’s employer, Dr Barker considered it was possible that the robbery occurred in response to persecutory beliefs as the offender believed he was under surveillance. However, Dr Barker considered that the offence of theft wherein the offender transferred money to a third party is more likely to have been motivated by other factors. I accept those opinions.

96. Dr Barker considered that the burglary and theft offences committed on 11 November 2024 could have been motivated by persecutory beliefs that the offender was under surveillance and needed to protect himself. Based on the victim’s account of those offences, that certainly seems to be the case and I accept the doctor’s opinion on that issue.

97. Dr Barker considered that the offences of escape and the use of his friend’s credit card to buy a bus ticket were likely motivated by his illicit substance use. I agree.

98. In light of Dr Barker’s evidence, I am satisfied that the degree of the offender’s responsibility for the robbery, burglary and theft offences is slightly reduced by reason of his schizophrenia. However, for the reason already explained, the same cannot be said for the sexual offences.

The weight to be given to other sentencing purposes

99. The purposes of sentencing stated in s 7 of the Crimes (Sentencing) Act are to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; to prevent crime by deterring the offender and other people from committing the same or similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.

100. It has been held that the serious nature of the offence of sexual intercourse without consent demands that the purposes of deterrence, denunciation and recognition of harm must be given prominence: Wyper v The Queen [2017] ACTCA 59 at [114]. Such statements inform the sentencing discretion but do not obviate the need to give real consideration to its proper exercise in the circumstances of any individual case. That said, the sexual offences in the present case are grave offences of their kind. The purposes of deterrence, denunciation and recognition of the harm done to the victim have played a significant role in my determination of the appropriate sentences for those offences. For the remaining offences, having regard to the opinions of Dr Barker, those purposes are of less significance.

101. The offender is not an Australian citizen or a permanent resident. Upon the expiration of the terms of imprisonment I will impose, he is likely to face deportation. I was invited to have regard to that as an element of hardship that will make his sentence more onerous for him. However, he informed the author of the pre-sentence report that he intends to return to Iran where he can reside with his family. Accordingly, I do not think I can have regard to that factor as a hardship. I do however have regard to the fact that he has no family in Canberra and, by his report, only one friend to support him during his sentence of imprisonment. Furthermore, his English is not fluent and that is likely to add to his sense of isolation as a prisoner.

Comparative cases

102. I am required to have regard to current sentencing practices: s 33(1)(za) of the Crimes (Sentencing) Act. However, as acknowledged by both parties, the need for individualised justice is paramount. Given the number of offences and the complexity of the present sentencing exercise, it has not been possible to obtain any great assistance from any comparable decision. I have reviewed the cases referred to by the parties as a form of check or yardstick.

Reduction of sentence to reflect the guilty pleas

103. For all offences apart from the sexual offences, the offender entered his pleas of guilty in the Magistrates Court. For the sexual offences, he pleaded guilty after the criminal case conference.

104. Section 35(3) of the Crimes (Sentencing) Act provides that, if an offender pleads guilty to an offence, the court may impose a lesser penalty (including a shorter non-parole period) than it would otherwise have imposed. Section 35(2) provides a non-exhaustive list of mandatory considerations to guide the exercise of that discretion. The provisions of that section broadly reflect the “principles of general application” at common law considered by the NSW Court of Criminal Appeal in R v Borkowski [2009] NSWCCA 102 at [32] (Howie J, McClellan CJ at CL and Simpson J agreeing). One of those principles, said to be derived from the decision in R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 at [119] to [123], is that the “utilitarian discount” does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence. In Thomson at [122], Spigelman CJ explained that the aspects of the guilty plea that go to “remorse and witness vulnerability” are more closely related to the circumstances of the offender than the element of advantage to the administration of criminal justice.

105. This Court is of course not bound by the decisions in Thomson and Borkowski. They warrant respectful consideration but ultimately the task in the Territory is to apply s 35 of the Crimes (Sentencing) Act. It is nonetheless worth noting that Thomson was decided almost 25 years ago. The conduct of sexual assault trials and our understanding of their appropriate management has developed significantly in that time. In my respectful opinion and based on my own experience of presiding over sexual assault trials, it can properly be held that a plea of guilty that spares a vulnerable witness the ordeal of a trial has real utilitarian value to the administration of justice.

106. The offender relied on the statement of the Court of Appeal in Blundell v R [2019] ACTCA 34 at [12] where the Court said: However, notwithstanding that his Honour considered appropriate factors, the result of a discount of 10% remains too low. Its defect is that it does not take full account of the utilitarian value of a ‘settlement’ following a Case Conference. The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.

107. With respect, a judicial statement that a specified range of discount is “required” must be read in light of the principles stated by the High Court in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. In particular, judge made rules must not be developed and applied in a manner that finds no support in the statute. However, as already noted, s 33(1)(za) of the Crimes (Sentencing) Act requires the Court to have regard to current sentencing practice.

Sentence

108. As the sentences I am about to impose will total more than a year, I am required to set a non-parole period: s 65(2) of the Crimes (Sentencing) Act. Until recently, a non-parole period could not be set for an escape offence because “a sentence of imprisonment imposed for an offence committed while in lawful custody” was one of the sentences included in the definition of excluded sentences for the purposes of the non-parole provisions: s 64(2)(e) of the Crimes (Sentencing) Act as it previously stood. The decision of Mossop J in Morrison v Maher (No 2) [2022] ACTSC 63 proposed a possible sentence structure by which the court could set a non-parole period for other sentences imposed at the same time, by directing that the sentence for the escape offence start first in time and fixing a non-parole to commence at the end of that period.

109. It is no longer necessary to adopt that course because s 64(2)(e) as it stood at the time of that decision has been repealed by s 8 of the Crimes Legislation Amendment Act 2024 (ACT). The explanatory statement notes that this reform was made in response to concerns expressed by Loukas-Karlsson J in Biddle v Gatherer [2021] ACTSC 236 at [42].

110. The amendments did not repeal the statutory default rule under s 72(2) of the Act that unless a direction is made under s 72(3), the sentence for the escape offence must be cumulative upon the other sentences imposed. In Morrison v Maher (No 2) at [178], Mossop J noted that, while s 72(2) alters the general rule in s 71 that sentences be served concurrently, there is no threshold requirement before a direction under s 72(3) may be made (except in the circumstances referred to in s 72(4), which were not applicable in that case and are not applicable here). The court must be guided, in determining whether to depart from either default rule, by orthodox sentencing principles.

111. In the present case, while some concurrency can appropriately be maintained within each series, it is plainly appropriate to direct some accumulation between the different series to reflect the different offending and the separate victims. However, the principle of totality also plays an important role. An offender is not of course to be given a discount for committing multiple offences. However, in a humane society, a sentencing court must consider the sum of multiple sentences to ensure that the cumulative term of imprisonment is not unduly harsh.

112. In the case of the sexual offences, I do not think the sentences should all be concurrent. There should be some accumulation to reflect the compounding trauma inflicted on the victim with each separate offence. I otherwise propose to allow substantial concurrency within each series and some accumulation between separate series to recognise the separate offending. I note that, because of my preference for sentencing in the chronological order of the five series of offences, this will have the result that some sentences in series 3 are wholly concurrent with series 2. However, the overall effect is to accumulate each series upon the previous series. I note further that, to avoid a confusing set of sentencing orders, for some sentences I have rounded up the reduction for the plea while for others I have rounded down, ensuring at the same time that the sentences are structured so as to give effect my intended outcome.

113. For the offences in series 2, the robbery and theft from the employer, but for pleas of guilty, I would have imposed sentences of 18 months for the robbery and 4 months for the theft. The pleas of guilty in those matters were entered in the Magistrates Court after service of the brief. Accordingly, I would allow a reduction of approximately 20%, giving sentences of 14 months and 3 months respectively.

114. For the offences in series 1, the sexual offences, but for the pleas of guilty, I would have imposed sentences of 3 years for each offence. I see no reason to distinguish between the offences; each was equally serious and I must take the acts of indecency into account. In accordance with the principles I have discussed, the sentences should be reduced by approximately 15%-20% to reflect the pleas of guilty, giving a sentence of 2 years 6 months for each offence. The offences were committed over a single, albeit extended, period. The offender subjected the victim to a sustained attack involving repeated threats and violence. The experience was extremely traumatic for the victim. Accordingly, while there should be some concurrency to reflect the course of conduct, there should be some accumulation between the sentences to reflect and denunciate the traumatic effect of the sustained ordeal suffered by the victim. I propose to structure the sentences for the sexual offences so as to give a total period of imprisonment for 4 years.

115. For the offences in series 3, but for pleas of guilty, I would have imposed sentences of 2 years for the burglaries and 6 months for the thefts. The pleas of guilty in those matters were entered in the Magistrates Court after service of the brief. Accordingly, I would allow a reduction of approximately 20% giving sentences of 19 months and 5 months respectively. For the offence of assault, but for the plea, I would have imposed a sentence of 1 year. Allowing a reduction of approximately 20% gives a sentence for that offence of 10 months.

116. For the offence of escaping from lawful custody, the sentence I would have imposed but for the plea is a term of four months. Reducing that sentence to reflect a discount and on the rounding up basis which I have indicated, the sentence for that offence will be a period of three months, partially accumulated.

117. The total term of imprisonment will be a period of six years and one month with a non-parole period of four years.

118. Mohammadiman Aghahosseini, please stand: (1) For the offence of theft (CC2023/3083), you are convicted and sentenced to imprisonment for a term of 3 months starting on 28 October 2022 and ending on 27 January 2023. (2) For the offence of robbery (CC2023/3082), you are convicted and sentenced to imprisonment for a term of 14 months starting on 28 October 2022 and ending on 27 December 2023. (3) For the offence of sexual intercourse without consent (CC2023/5564), you are convicted and sentenced to imprisonment for a term of 2 years and 6 months starting on 28 December 2023 and ending on 27 June 2026. (4) For the offence of sexual intercourse without consent (CC2023/5566), you are convicted and sentenced to imprisonment for a term of 2 years and 6 months starting on 28 June 2024 and ending on 27 December 2026. (5) For the offence of sexual intercourse without consent (CC2023/5567), you are convicted and sentenced to imprisonment for a term of 2 years and 6 months starting on 28 December 2024 and ending on 27 June 2027. (6) For the offence of sexual intercourse without consent (SCCAN2024/6), you are convicted and sentenced to imprisonment for a term of 2 years and 6 months starting on 28 June 2025 and ending on 27 December 2027. (7) For the offence of theft (CC2022/11118), you are convicted and sentenced to imprisonment for a term of 5 months starting on 28 November 2026 and ending on 27 April 2027. (8) For the offence of theft (CC2022/11119), you are convicted and sentenced to imprisonment for a term of 5 months starting on 28 November 2026 and ending on 27 April 2027. (9) For the offence of burglary (CC2022/11115), you are convicted and sentenced to imprisonment for a term of 19 months starting on 28 November 2026 and ending on 27 June 2028. (10) For the offence of burglary (CC2022/11116), you are convicted and sentenced to imprisonment for a term of 19 months starting on 28 November 2026 and ending on 27 June 2028. (11) For the offence of assault occasioning actual bodily harm (CC2022/11117), you are convicted and sentenced to imprisonment for a term 10 months starting on 28 December 2027 and ending on 27 October 2028. (12) For the offence of escaping (CC2022/11432), you are convicted and sentenced to imprisonment for a term of 3 months starting on 28 August 2028 and ending on 27 November 2028. (13) For the offence of obtaining property by deception (CC2022/11948), you are convicted. No further sentence is imposed. (14) I set a non-parole period of 4 years commencing on 28 October 2022 and ending on 27 October 2026.

I certify that the preceding one-hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: