R v Alabbasi [2017] ACTSC 231

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trial by jury - two counts - threat to inflict actual bodily harm with intent to engage in sexual intercourse - engage in sexual intercourse without consent - at time of offences no criminal record - expressed remorse - no plea of guilty - illicit drugs - reasonable prospects for rehabilitation - terms of full-time imprisonment imposed

Crimes Act 1900 (ACT) ss 53(1) s 54(1)

Crimes (Sentencing) Act 2005 (ACT)

1. Mohammad Alabbasi, on 6 June 2017 following a trial by jury you were found guilty of two offences. The first is one count contrary to s 53(1) of the Crimes Act 1900 (ACT) that between 1 January 2014 and 31 December 2014, you threatened to inflict actual bodily harm on the victim with intent to engage in sexual intercourse with her. The second offence was one contrary to s 54(1) of the Crimes Act 1900 (ACT), that between the same dates you engaged in sexual intercourse with the victim without her consent, being reckless as to whether she was consenting. Each of those offences carries a maximum penalty of 12 years imprisonment.

2. There is now really no dispute about the fact that you committed these offences. During the sentence proceedings you gave evidence in which you frankly admitted that you threatened the victim with a pair of scissors, demanding that she engage in anal sexual intercourse with you. You threatened to cut off one of her fingers and also ran the blade of the scissors down her thigh. This is the basis of the first count. You then escorted the victim to her bedroom and engaged in anal intercourse with her until you ejaculated.

3. This was very painful for the victim, who was crying and also crying out into her pillow at the time. You were well aware, I am satisfied, of the fact that the victim was not consenting to this conduct. These offences occurred at the victim's home. Her father was home at the time, but she was concerned that he not become involved. These offences did not come to light until 2016 when police spoke to the victim about another matter, although the victim did complain to a friend of these events on the day that they occurred.

4. At the time of these offences you had no criminal record. I note that you are 22 years old and you have been in custody continuously since 11 May 2016 for these and other offences. You have entered pleas of guilty to some other offences for which you are to be sentenced by Mossop J on 10 November this year. Since being remanded in custody you have been subject to disciplinary action, but you have also completed the anger management and First Steps alcohol and drug programs. You engaged positively with those programs. You are employed as a cleaner within your section in the AMC.

5. You are originally from Iraq and you came to Australia with your mother and seven siblings as refugees. At that time you were about 10 years old. You witnessed both war and violence in Iraq. You have an older brother who has been involved in criminal activity. I am satisfied that your older brother has had an influence on you and also in forming your attitudes. You have continuing support from your mother and other siblings. You have no contact with your father, who apparently remains in Iraq and is engaged in criminal activity there. If you were able to, you propose to return to live with your family upon release from custody.

6. You worked in the building and hospitality industries before being remanded in custody. You also have work available to you upon release. From time to time you have also been in receipt of Centrelink payments. You reported problematic gambling to the author of the Pre-Sentence Report before you were remanded in custody. In the Alexander Maconochie Centre you have commenced attending a prayer group which has helped you to change your attitudes.

7. I note that you commenced using methylamphetamine and cannabis when you were about 18 and reportedly you used those substances to help you deal with negative experiences and problems in your life. You have now ceased using illicit drugs. You are also now receiving medication for depression. You suffer from anxiety and depression connected to your experiences as a refugee. I am not satisfied that your underlying conditions of anxiety or depression were in any way connected with the commission of the presence offences. The author of the Pre-Sentence Report opined that you took responsibility for your actions and expressed feelings of shame. You expressed an understanding of how your actions may have affected the victim. You have been interviewed by the Department of Immigration and advised that you may be deported.

8. As previously noted, you gave evidence at the sentence hearing. I am satisfied that you were frank and honest in your evidence. You expressed remorse for your actions, albeit that you acknowledge that your remorse was late in developing. I am prepared to find, on the basis of the evidence that you gave, that your attitudes at that time were influenced not only by the influence upon you of your brother, but also the fact that you were using illicit drugs. I am not fully cognisant of the charges that are before Mossop J or the circumstances surrounding them. If I concern myself only with the present charges, I would say that you have reasonable prospects for rehabilitation.

9. There was of course no plea of guilty in relation to these charges and, as such, you are not entitled to a discount for a plea of guilty. I note with respect to determining the objective seriousness of these offences that they occurred within the victim's own home and also that the offence of sexual intercourse without consent caused the victim considerable pain.

10. I was referred to a number of authorities by the Crown in relation to sentencing in similar previous cases. I will not set out the sentences that were handed down in those cases, but they reveal a range of sentences for this type of offending. I am satisfied that the only appropriate sentence with respect to these offences is one of full-time imprisonment, having regard to the purposes of sentencing set out in the Crimes (Sentencing) Act 2005 (ACT). I accept that because these offences occurred as part of the one series of events that the sentences to be imposed should be largely concurrent.

11. With respect to the first count (CC2016/8494) you will be convicted and sentenced to 20 months imprisonment commencing on 11 May 2016 and expiring on 10 January 2018.

12. With respect to the second count (CC2016/8492) you will be convicted and sentenced to 30 months imprisonment commencing on 11 November 2016 and expiring on 10 May 2019.

13. The aggregate sentence which I have imposed, therefore, is one of three years imprisonment commencing on 11 May 2016 and expiring on 10 May 2019.

14. I will set a nonparole period of 22 months commencing on 11 May 2016 and expiring on 10 March 2018.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.