DPP v Asbiran [2025] ACTSC 561

1. Hasan Asbiran has been found guilty by a jury of five sexual offences against his stepdaughter, being one offence of sexual intercourse with a person under 10 contrary to s 55(1) of the Crimes Act 1900 (ACT), two offences of sexual intercourse with a person under 16 contrary to s 55(2) of the Act and two acts of indecency with a person under 16 contrary to s 61(2) of the Act. I presided over the trial.

2. The offence of sexual intercourse with a person under 10 carries a maximum penalty of imprisonment for 17 years, which indicates its gravity in the criminal calendar. The offence of sexual intercourse with a person under 16 carries a maximum penalty of imprisonment for 14 years, while the acts of indecency with a person under 16 carry a maximum penalty of imprisonment for 10 years.

Nature and circumstances of the offences

3. It is necessary to determine the facts on which the offender is to be sentenced.

4. It is clear from the jury’s verdicts that they accepted the victim’s evidence as to each of the five offences. That is unsurprising, as she was an impressive witness. Her evidence was not damaged in cross examination. I am satisfied as to the truthfulness and reliability of her account. Accordingly, I find the facts to be in accordance with the record of her evidence-in-chief interview by police, which may be summarised as follows.

5. The five offences were committed over three separate incidents. Count 1 is the offence of sexual intercourse with a person under the age of 10 years old. That offence was committed between 1 January 2014 and 22 July 2014, when the victim was nine. At that time, the victim was staying in the same bedroom as her mother and the offender. The victim described an occasion on which, in the morning, her mother went to have a shower. The offender started stroking the victim’s leg and started trying to put his fingers inside her pants. He wiggled his fingers under her underwear and put his fingers inside her vagina. She said “no, stop” and went into the living room. The offender followed her. He put her on the couch. At that time, the offender was not fluent in the English language (he is Indonesian). He typed on his phone into Google translate and showed her the phone, which said “this can be our little secret”.

6. On behalf of the offender, it was submitted that the objective seriousness of this offence was slightly below the middle of the range. The basis for that submission was that, as the offence was committed while the victim’s mother was in the shower, it must have been relatively brief. The offence did not involve violence, but violence is often not necessary to secure the cooperation of a child. That is particularly so where manipulation, such as a request to keep a secret, takes the place of force. In any event, the absence of violence merely indicates the absence of an aggravating factor; it does not mitigate the seriousness of the offence.

7. The seriousness of the offence is aggravated by the fact that the offender was in a position of trust and authority over the victim, being in the role of a parent or carer. However, as I was reminded by the prosecution, I must be careful not to sentence the offender as if he had been charged with the more serious offence of incest.

8. The offender continues to deny the offences and accordingly has not attempted to explain his reason for committing them. The prosecution invited me to find that the reason was for the offender’s own sexual gratification. I am satisfied of that fact beyond reasonable doubt. There can be no other explanation for the offender’s conduct.

9. I would assess the seriousness of the offence in count 1 to be at or towards the middle of the range.

10. The second, third and fourth offences were committed on a single occasion between 1 February 2016 and 9 August 2017, when the victim was 11 or 12. Those offences were committed on a day when the victim was home from school because she was unwell. Her mother was out and she was at home alone with the offender. The victim was watching a show on Netflix. The offender was asleep next to her but evidently awoke at some point. He started to rub her leg and then tried to kiss her, including trying to put his tongue inside her mouth (count 2). He put his hands in her pants, then removed her pants and digitally penetrated her (count 3). She tried rolling over but he pulled her closer. She tried to get him off, but he would not get off. When she eventually got him off, she went to the bathroom. He followed her and put her on the sink, lifting her by the armpits and sitting her on the bathroom sink where he again digitally penetrated her (count 4). She said “no, I need to go shower”. She got him out of the bathroom and locked the bathroom. After showering, she pointed out to him that it was close to the time when her siblings would be home. She told police that was “all that happened that day”.

11. Counsel for the offender conceded that those offences would fall at least in the middle of the range of objective seriousness. The concession was appropriately made. The offences were committed on a day when the victim was at home alone with the offender. Although the offences did not involve physical violence in the nature of an assault, they involved sexual violence in that the offender persisted in the face of the victim trying to push him off and trying to get away from him.

12. I would assess the objective seriousness of those offences as being well into the middle of the range.

13. The fifth offence is an act of indecency committed when the victim came home after going out for Halloween. She had hives all over her body. She asked her mother for a powder used by the family which they refer to as Indonesian powder. The victim said she could put the powder on herself, but the offender insisted that he would do it. When he got down to the area of her vagina, he rubbed her on the outside of her vagina. That offence involved skin-to-skin contact.

14. There was evidence in the trial of offences committed by the offender against the victim in New South Wales. That evidence was admitted as tendency evidence and need not be recited here, save to observe that the offences committed in the Territory were not isolated. The offender has been convicted in New South Wales for two offences and remains to be tried for a third.

15. As submitted by the prosecution, the offence of an act of indecency comprehends a broad range of offending, from an unwanted kiss to conduct falling just short of sexual intercourse. The offence in count 5, involving skin to skin contact in the area of the victim’s vagina, must be considered one of considerable seriousness within that range. Conversely, as submitted on behalf of the offender, that offence must necessarily have been brief in duration as it was committed at a time when the mother was in the house and possibly in the room.

Effect on Victims

16. I am required to consider the effect of the offences on the victims: Crimes (Sentencing) Act 2005 (ACT) s 33(1)(f). The victim of the offences gave a victim impact statement, as did her sister. As a result of these offences, the two women have become very close to each other but estranged from the rest of the family. At the sentence hearing, I inquired whether they were content to have the contents of their victim impact statements included within the sentencing judgment. The prosecution has since confirmed that the victims do not oppose that course.

17. The victim of the offences stated: One of the deepest wounds I carry is what this has done to my family. My own mother chose not to believe me. Because of this she’s deeply instilled this feeling within me that she has walked out of my life and alongside her my younger siblings also. The people I love with my whole heart. Not being able to see them to talk to them or to know how they’re doing has broken me in a way I can barely explain. Every single day, I think about them. Every single day, I wonder if they’re okay, and every single day I blame myself for losing them, even though I know this situation wasn’t my fault. With my older siblings [redacted] living in Canberra I was the oldest in my household. I always felt like it was my job to protect my younger siblings, take care of them, to make sure they were safe. And now, being forced away from them makes me feel like I failed in the one job that mattered most to me. I worry they’ll forget me. I worry they will think I abandoned them, when the truth is that all I’ve ever wanted is for them to be safe and loved.

18. The victim also spoke of the impact of the offences on her mental health, which she said has suffered deeply as a result of the offences. She said there have been days when the pain and stress have been so overwhelming that she could not get out of bed and days when going to work or even trying to function normally in her own space felt impossible. She said, “[i]t’s like carrying this heaviness that never really goes away, no matter how hard I try to push forward”.

19. She stated that the trauma had affected her in every relationship. She is not as open or trusting as she used to be, even with the people who care about her. Even so, she reiterated that, through all of this, the deepest pain she feels is the loss of her mother’s presence and overall support. She said “[n]o one can fill the hole it has left in my heart. She is the one person I’ve always needed love and protection from the most, and losing that has changed me forever”.

20. The victim concluded her statement as follows: I hope that one day my younger siblings will grow up and understand that I spoke up to protect them, and that I was never the bad person they were led to believe I was. To my sister, who has stayed by my side from the very first moment, thank you. To my brother, thank you. And to every person who has stood with me, supported me, and helped me survive this journey, I am truly grateful. This has been one of the hardest and most painful experiences of my life, and I know I would not have been able to hold on this long or make it through to the end without all of you. I will work toward forgiveness because I refuse to let this destroy the rest of my life, but I will never be able to forget the pain and trauma this has caused me. Even though there has been a guilty verdict, nothing can return the childhood that was taken from me.

21. The victim’s sister expressed similar sentiments about the loss of her relationship with their mother. After explaining the need for her to step up and look after the victim, she stated: As time has gone on my relationship with my mum has ruined. I used to see my mum as my best friend as well. I would go to her about everything, as you would in a healthy mother-daughter relationship. I would go to her for advice, support and love but now not only do I lack that but so does [the victim]. Not only has our relationship with our mum been affected, but so has the relationship between us and our younger siblings.

22. She describes the younger siblings and continues by referring to them as people who “we extremely love and adore”: It hurts that I can’t see them. It hurts that they don’t know how much I care about them and how much I want to speak to them. I want them to always know that I love them and that I would never wish for space between them. I will always fight to make sure they know I am always in their corner, no matter the distance. I miss watching them grow up and seeing them smile. They deserve every ounce of happiness in the world and I hope they never see any evil.

23. The sister went on to describe the impact that it had had on her to have to look after the victim, both financially and emotionally.

Circumstances of the offender

24. The anguish described by the victim and her sister resulting from the offender’s course of conduct of sexually abusing his stepdaughter stands in chilling contrast to the response of their mother. Not only has she chosen to disbelieve her daughter and, in effect, abandon her; she has gone further and chosen to support the offender with an impassioned plea for him to be released so that her family can “reunite” – her conception of family evidently not including two of her daughters. I cannot punish the offender for the attitude of his wife, the mother of the victim. Indeed, I am obliged to have regard to the probable effect the sentence would have on her and the offender’s children. That is a requirement of the Crimes (Sentencing) Act. However, I consider it relevant, in assessing the effect of the offences on the victim, that her family has been torn apart and that this is a source of enormous grief for her.

25. Turning to other personal circumstances of the offender I note, as already indicated, that he has prior convictions in New South Wales for sexual offences committed against the same victim. He also has a conviction for an offence of common assault against one of his biological children.

26. The offender’s subjective case is otherwise unexceptional. The prosecution tendered a presentence report prepared by ACT Corrective Services which sets out his personal circumstances.

27. The offender was born in Jakarta as one of six children. He was raised in the Muslim faith. His parents were strict, but he did not otherwise report any childhood disadvantage or abuse. He does not suffer from any mental illness or impairment. He does not use drugs or alcohol.

28. The offender relied for establishment of his subjective circumstances on a report from a psychologist, Mr Mitchell McLean, dated 14 November 2023. As the date suggests, that report was clearly prepared for other proceedings, apparently sentencing proceedings in respect of the New South Wales matters. It was prepared either in ignorance of the present offences or on the assumption that they were not committed. For that reason, little weight can be put on that report. The author assesses the offender to pose a low risk of reoffending, but that assessment was made without regard to these present offences.

29. The offender also tendered a character reference from a former employer and friend and who speaks highly of the offender’s personal qualities outside the family home. However, as is now recognised, a character reference from someone who sees a sexual offender in a context outside the context in which they offend can be given little weight by the Court.

30. The offender has no remorse. I do not know what the opposite of remorse is but that is what the offender has, as indicated by his decision to put forward a statement from the victim’s mother singing the offender’s praises and seeking to be reunited with him as soon as possible.

31. As already recognised, I am required to have regard to the likely effect of the sentence on her. She states in her letter to the Court that she is a mother of seven children, four currently living with her. She does not mention that two of the seven are the estranged victim and her sister. She states that she has been diagnosed with diabetes type II, high blood pressure, back pain, anxiety and depression. There is a medical letter before the court to confirm that information. She is suffering financially as a result of the defendant’s incarceration and also struggling to look after the younger children without him. She also expresses concern for their well-being and their mental health without their father.

32. I have given anxious consideration to the likely impact of the sentence on the mother and the children in her care. Unfortunately for them, this is a case in which the seriousness of the offences and the need to give effect to the sentencing purposes of punishment, general and personal deterrence, denunciation and recognition of the harm to the victim combine to require the imposition of a very substantial sentence of full-time imprisonment, one that will necessarily mean that the offender will not be released for years. I hope that has been explained to the victim’s mother. It is not acknowledged in her letter.

Current sentencing practice

33. In accordance with s 10 of the Crimes (Sentencing) Act, the power to sentence an offender to imprisonment is enlivened only if it the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. That threshold is clearly met in the present case.

34. The prosecution provided a table of comparative cases. Counsel for the offender did not seek to add any additional cases. I have considered those authorities. I agree with the submission of the prosecutor that most relevant is the decision of Refshauge J in R v BNS (No 2) [2016] ACTSC 145. Apart from providing guidance as to current sentencing practice, his Honour’s decision provides a helpful exposition of the seriousness of offences of this kind, which are regarded as “abhorrent and odious”. His Honour at [29] noted the remarks of Burns J in R v CC [2016] ACTSC 43 at [40]. That was a case concerning an offence of incest, but His Honour’s remarks are of equal application to sexual offending against a child by a step-parent. Justice Burns said: Incest and other sexual offending against your child is calculated to cause confusion in the child, to warp their understanding of what is considered right and wrong and to lower their estimation of the fundamental social unit, the family, as a place of love and safety. Such offences are also apt to cause grave and long-lasting psychological damage. As such, these offences cause great harm, not only to the particular victim but also to our community and its social institutions and values.

35. In the present case, for the victim and her sister, their estimation of the family as a place of love and safety for them was not lowered but shattered by the wedge that has been driven between the two sisters and their mother.

36. Considerations of totality are important in this case. Each offence must be punished individually but I must be astute not to reach a total sentence that is unduly harsh. To give effect to that principle, I have decided to make the three sentences for counts 2, 3 and 4 wholly concurrent. However, as between the three incidents, I have structured the sentences so as to allow only a small measure of concurrency.

37. The total term of imprisonment will be 10 years. Acknowledging the impact of the sentences on the offender’s (remaining) family, I propose to fix a non-parole period of 5 years.

Orders

38. Hasan Asbiran, please stand: (1) For the offence of sexual intercourse with a person under the age of 10 years (SCCAN2024/453), I convict you and sentence you to a term of imprisonment for five years commencing on 3 September 2025 and expiring on 2 September 2030. (2) For the offence of committing an act of indecency on a young person under the age of 16 years (CC2024/827), I convict you and sentence you to a term of imprisonment for one year commencing on 3 September 2030 and expiring on 2 September 2031. (3) For the offence of sexual intercourse with a person under the age of 16 years (CC2024/828), I convict you and sentence you to a term of imprisonment for four years commencing on 3 September 2030 and expiring on 2 September 2034. (4) For the offence of sexual intercourse with a person under 16 years (CC2024/829), I convict you and sentence you to a term of imprisonment for four years commencing on 3 September 2030 and expiring on 2 September 2034. (5) For the offence of committing an act indecency on a young person under the age of 16 years (CC2024/830), I convict you and sentence you to a term of imprisonment for two years commencing on 3 September 2033 and expiring on 2 September 2035. (6) I fix a non-parole period of five years commencing on 3 September 2025 and expiring on 2 September 2030.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: