R v Panchal [2014] NSWCCA 275
Tindall v R [2019] NSWCCA 136
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
R v Panchal [2014] NSWCCA 275
Tindall v R [2019] NSWCCA 136
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Judgment (3 paragraphs)
[1]
Judgment
Soloman Agan was born in December 1988 during a protracted civil war in his homeland of Sudan. His parents were both killed in that war. He had 11 or 12 siblings with only two of them surviving the war. He had no formal schooling. He was conscripted into the South Sudanese army as a child solider when he was seven years of age and he remained in the army until his early teens. He suffered a bullet wound while fighting as a child. He spent six months in a Kenyan hospital, eventually walking with crutches. He was then taken to an Ethiopian refugee camp where he lived from a2000 to 2006. He came to Australia as a United Nations refugee in 2007. He has no relatives in Australia. He has studied English and his command of English has improved over the years with support from the government and immigration authorities.
It is against this tragic background, as described by Mr Winch, that Agan stands for sentence today for three offences of aggravated sexual assault, the circumstance of aggravation being that the victim had a cognitive impairment contrary to s 61J(1) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of ten years. These penalties are indications of the serious nature of these offences.
I must take into account all the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include denunciation, punishment, making him accountable for his actions, but also promoting his rehabilitation.
He pleaded guilty at a relatively late stage, but as the Crown acknowledges, that plea spared the intellectually impaired victim of the ordeal of giving evidence, and it is agreed that a 15% discount for the utilitarian value of the plea is within an appropriate range of discretion. That is the discount that I will apply to the term of imprisonment, it being conceded by Mr Winch that there is no alternative to a period of fulltime custody. He has been in custody since his arrest on 28 March 2018 and the term of imprisonment will commence on that date.
The victim was born in 1991. She has an intellectual capacity which a psychiatrist said was the equivalent of an eight to ten year old child with an IQ of around 50 to 55. The victim has a degree of independence, but requires supervision by staff or carers 24 hours a day and assistance with the activities of daily living. She lives at a facility called the House With No Steps. The offender and the victim have known each other for some time and he knew where she lived.
On the afternoon of 17 March 2018, she received a call from him, asking her to come to his place, so she went to his place at Queanbeyan. He said, "Please get on the bed". She said "No". He put her on the bed and she said, "Please don't do this. I just don't want to do this". He removed her pants and underwear and engaged in penile‑vaginal intercourse. She told him to stop and said, "I don't want to do it", but he continued. He was not wearing a condom. That is the subject of count 1.
The second count relates to a period shortly after the first incident when they were in his bedroom. He again had intercourse with her. She told him to stop and to "get off me", but he ignored her and he ejaculated inside her vagina while not wearing a condom. She then got dressed. They walked to the shops and bought a bottle of vodka, which she paid for. They were seen on CCTV. Then they returned to his place.
They were in the lounge room and drank the 700 mil bottle of vodka between them, with the victim drinking five or six small glasses of alcohol and the offender had four or five glasses. They then went to the bedroom, where he took off his pants and underwear and hers. She said, "No, I don't want to do this". He told her to lay on the bed and put his penis into her vagina. She continued to say, "I don't want to do that" and said no a number of times, but he continued with the intercourse and eventually stopped. He was not wearing a condom. She felt unwell and she vomited in his toilet. He refused her request to walk her home. She returned home and vomited again in the toilet.
The next day, she told a support worker at the House With No Steps what had occurred. She said the offender "insisted on having sex with me three times. He gave me drink and had sex, but I didn't want it and he kept going". The support worker contacted the police. She was taken to Canberra Hospital and underwent an examination where a number of forensic samples were taken. There was an injury to her vagina, namely bruising and a labial tear. Semen was detected on a swab and the DNA profile of the offender was there.
On 20 March 2018, investigators went to the offender's residence and cautioned him. He participated in an interview. He admitted having the victim around and consuming some vodka, but he denied any sexual contact with her. He said that he was aware she had a bad brain and her brain was not good. He was served with a provisional apprehended violence order naming the victim as the person in need of protection.
On 28 March 2018, he went back to Queanbeyan Police Station. He was arrested, contacted a lawyer, and was offered the opportunity of a support person. Diane Shepherd was nominated by him as a support person. She attended Police Station. He participated in an interview with his support person wherein he adopted his earlier interview and did not wish to add anything, but as will be apparent by his pleas of guilty, he acknowledges the facts which I have recounted.
The victim impact statement is taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. It is not tested or adopted, but it is restricted to speak to the effects on her of three sexual assaults. She says she has had panic attacks and has had to stop working and it is difficult to find safe and suitable work. She cannot watch anything on TV that shows any sort of violence and does not like people raising their voices as a result of the offendening. Notwithstanding what has happened to her, she says that she is going to go and make a great life for herself, which is to her credit.
The offender was on a ten month s 12 bond imposed on 11 September 2017 in respect of a high range PCA offence. The facts of that case show that he was totally oblivious, according to Police, to his actions on the night when he drove a car and collided with a brick wall with a reading of .216. He is being called up for breach of that bond, but in the circumstances, I will take no action in respect of the breach. He has a record, including offences for common assault in 2007 dealt with by a bond; and assaulting the Police in 2015 leading to the s 12 bond; offensive behaviour dealt with by fines; contravene AVO leading to a suspended s 12 sentence and the high range PCA to which I have referred. There are minor property and drug offences dealt with by fines.
The subjective history, which the Crown acknowledges is the basis of a very strong subjective case, was taken from a report of Dr Furst, a psychiatrist, prepared in June 2019 on the issue of whether the offender was fit to plead. Dr Furst said that he was not suffering from a major mental illness and was fit to plead. I accept the history that is given there, even though it has not been the subject of challenge. It sounds entirely reasonable that he has post- traumatic stress disorder, suffers from intrusive memories of atrocities he witnessed in the Sudan, including memories and images of his family being killed and other people dying. He wakes up at night crying. He reports finding it difficult to fit in in Queanbeyan, apparently being physically assaulted and robbed by local drug addicts. He was drinking excessively to cope with the intrusive, traumatic memories, a pattern that continued up until the time of his arrest. He had engaged with a psychologist over a number of months, but his symptoms continued and he drank up to a bottle of spirits or a case of beer at a time. He was smoking cannabis for about three or four years but denied any other illicit drug use. Dr Furst diagnosed posttraumatic stress disorder and alcohol and cannabis abuse or dependence.
I have a heartfelt reference written by Tania Black and Diane Shepherd, a mother and daughter, who have known him for about five years. They became acquainted with him when they were having some concrete laid and they formed a friendship with him. Before he went to gaol, he was sending regular money to his auntie in Kenya through Western Union, but they encouraged him to save money and they supported him in a number of ways, including providing meals, paying bills, teaching him to drive, buying him a car, letting him into their home, encouraging him to attend classes, taking him to English classes, celebrating special days, sharing meals together, and attending court.
They are committed to continuing this level of support even though they acknowledge that sometimes he would turn up when he was inebriated and it was impossible to reason with him. They would simply give him a sandwich and a drink and take him home. But sober, he is a different man. He is kind, caring, genuine, and thoughtful, he helps out and engages in interesting conversation. He shows empathy and a rich sense of humour, but when drunk, he is annoyingly friendly, unreliable, and usually unrepentant. They hope that he stays sober and gets a job and engages in some serious counselling. They acknowledge the challenges for him in the future. They visited him a number of times in Goulburn and they will continue to visit and support him.
I also have a testimonial from Pastor Ansar from Ministry of Repentance, who has known him since 2016. He saw him almost every Sunday at church. He was helpful around the church, setting things up for the services. He has described him as a very benevolent, courteous, active and dedicated to work. Even knowing the gravity of the offending, the Pastor asks the Court to balance it against his childhood trauma. He sincerely believes that he has a high chance of rehabilitation, if granted the opportunity, and members of the church will continue to support him.
As the Crown acknowledges, the intellectual disability of the victim is a circumstance of aggravation but it is not separately an aggravating factor in the case. The mitigating factors to be taken into account include the lack of planning and the plea. I accept that he is remorseful. Mr Winch acknowledges the injury to the victim as an aggravating factor. The Crown submissions note in assessing objective seriousness any degree of violence, of physical hurt inflicted before the forced intercourse and the duration of the offending should be taken into account and points me to two decisions of the Court of Criminal Appeal in Panchal v R; R v Panchal [2014] NSWCCA 275 and Tindall v R [2019] NSWCCA 136.
In Tindall v R [2019] NSWCCA 136, an aggregate sentence of 11 years and the non‑parole period of eight years and three months was imposed for two offences contrary to s 61J of the Crimes Act 1900. The sentence was not altered by the Court of Criminal Appeal. I have read the judgment in full and take it into account, although the Crown does not, of course, put that these are anything more than indications of sentences imposed in other cases and has not created a range or a boundary of an appropriate sentence in this case.
Panchal v R; R v Panchal [2014] NSWCCA 275 was a case involving a train guard committing sexual assaults against an impaired victim on a train. An ultimate effective sentence of eight years with a non‑parole period of five years and six months was imposed.
The offending, in this case was towards the mid-range of objective seriousness and I accept that there should be a small degree of accumulation to reflect the fact that there were three separate instances of intercourse. The Crown acknowledges that this is his first time in custody and there is a demonstrated need for supervision and support, and he lacks family support to deal with his mental and alcohol abuse issues. There is a clear basis for a finding of special circumstances.
Mr Winch's written submissions do not take serious issue with the Crown's position and he acknowledges that, objectively, these are very serious matters.
There is no doubt that prison has been, and will continue to be a difficult experience for Mr Agan given his background. There is evidence in Dr Furst's report of an assault in custody which has resulted in a significant injury to him. I take into account his efforts in advancing his knowledge of English and obtaining skills in the building trades while in custody. He clearly has significant deficits and multiple needs and those can be addressed both in custody and, more importantly, during a period of extended supervision upon his release to parole.
General and specific deterrence and denunciation are very important aspects of the sentencing process so that both the offender and the public know that the courts will treat serious offences, such as this, with significant terms of imprisonment.
The orders that I make are:
1. The offender is convicted of each offence.
2. The indicative sentences are:
1. Count 1 (001): 5 years, 6 months
2. Count 2 (002): 5 years, 6 months
3. Count 3 (003): 5 years, 6 months
1. I impose an aggregate sentence of imprisonment of 6 years, to commence on 28 March 2018.
2. I impose a non-parole period of 3 years, 8 months, expiring on 27 November 2021.
3. I find special circumstances.
[2]
Breach of bond: Section 12 bond - High range PCA (H65422779)
1. Breach proven. No further action is taken.
Note - These extempore remarks were revised without access to the court file.
[3]
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Decision last updated: 03 April 2020