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[2025] NSWDC 512
General information, not legal advice.
District Court of NSW
2025-09-26
KING SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Eraky [2025] NSWDC 512
Hearing dates: 12 September 2025
Date of orders: 12 September 2025
Decision date: 26 September 2025
Jurisdiction: Criminal
Before: KING SC DCJ
Decision: Indicative Sentences:
Seq 001 – 2 Yrs NPP – 1 Yr; Seq 012 – 9 mths; Seq 048 – 6 mths; Seq 047 – 6 mths; Seq 042 – 4 mths;
Seq 049 –3 mths; Seq 053 – 4 mths; Seq 054 – 4 mths; Seq 036 – 3 mths; Seq 035 – 3 mths;
Seq 013 – 9 mths; Seq 033 – 4 mths; Seq 055 – 9 mths; Seq 030 – 4 mths; Seq 029 – 4 mths;
Seq 027 – 3 mths; Seq 025 – 6 mths; Seq 023 – 6 mths; Seq 017 – 9 mths; Seq 029 – 9 mths;
Seq 019 – 9 mths, Seq 021 – 3 mths Seq 052 – 4 mths, Seq 018 – 9 mths ;Seq 014 – 6 mths;
Seq 032 – 6 mths; Seq 037 – 9 mths; Seq 056 – 9 mths; Seq 038 – 6 mths; Seq 004 – 3 mths;
Seq 003 – 6 mths; Seq 003 – 6 mths; Seq 002 – 6 mths.
Aggregate sentence:
Convicted. Special circumstances found – first time in custody, and the need for a longer period on supervised parole required to assist in rehabilitation
The aggregate sentence is a term of imprisonment for 4 years with a non-parole period of 2 years to commence on 31 July 2025 and to expire on 30 July 2027, upon which date he will be eligible for release to parole, and a balance of term of 2 years to commence on 31 July 2027 and to expire on 30 July 2029.
I further impose an AV0 of 2 years (standard conditions) to commence from 30 July 2027 on the offender’s release to parole.
Catchwords: CRIME – sentence after trial – sexual assault (x1) – AOABH (x9) - intimidation (x3) - common assault (x19)– damage property (x1) - seriousness of individual offences committed in context of course of conduct against one victim, the offender’s OCD-affected wife, over 5 years – subjective features
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Category: Sentence
Parties: Rex
Eraky, Nader
Representation: Counsel:
Crown: Mr A Norrie ODPP
Defence: Mr A Gauja
Solicitors:
Ms C Chambers ODPP
Mr E Khoury, Edmond Khoury Solicitors
File Number(s): 2023/00230412
Publication restriction: NPO in respect of the name of the complainant and anything that might tend to identify her
HIS HONOUR: Nader Eraky appears for sentence today in respect of a number of offences.
He had a trial commencing on 30 June 2025 in respect of which there was one count - Count 1 - contrary to s 61I of the Crimes Act 1900, in relation to which the maximum penalty is 14 years, and there is a relevant standard non-parole period of seven years.
He also stood trial in respect of a further 23 counts of common assault. On 30 August he was convicted by the jury in relation to 19 of those counts and found not guilty in relation to five. The counts he was found guilty in respect of were Counts 3, 11, 12, 13, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36 and 38. The maximum penalty in relation to each of those offences of common assault contrary to s 61 of the Crimes Act is a penalty of two years’ imprisonment.
He was also found guilty of nine counts of assault occasioning actual bodily harm, being Counts 5, 7, 8, 9, 10, 14, 15, 17 and 18.
In addition, there were four counts of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, He was found not guilty in respect of one of those four offences, and guilty of the other three. The maximum penalty for each of those individual offences is five years’ imprisonment and/or a fine of 50 penalty units.
There was one further offence of damaging property contrary to s 195(1)(a) of the Crimes Act, for which the maximum penalty - the value of the property (being simply a mobile telephone) being less than $5,000 - is two years’ imprisonment.
Except for the fact that they concerned a course of conduct from approximately 1 October 2017 to 18 December 2022, all in relation to the same victim, his wife, in respect of the majority of those offences, it has been accepted by the Crown that with the exception of the sexual intercourse without consent offence, they could readily have been dealt with individually in the Local Court, where the maximum would have been two years for any individual offence.
The Crown has provided two documents: one titled “Crown Facts on Sentence”, asserting that what is contained is consistent with the jury’s guilty verdicts for the offences I have referred to in respect of which he was found guilty. In addition, the Crown has provided a further document as part of its Crown submissions on sentence which seeks, in effect, to reduce the bulk of the Crown facts on sentence by referring to some aspects in short in respect of each offence.
The Crown Facts on Sentence in full consists of some 13 pages, and I do not propose to take time reading those onto the record. I will rely mainly, in terms of what I refer to, on the Crown’s simplified version, which might be referred to as the “salient details concerning each offence.” However, it is necessary to refer to some of the preliminary and introductory matters:
1. The victim moved to Australia from Syria in 2014. In July or August 2017, she moved in to live with Shadia Amer. The victim was introduced to Shadia Amer through Nour El-Bekkahi, who was the best friend of Shadia Amer’s daughter-in-law. The victim was introduced to the offender through Shadia Amer.
2. On 15 August 2017, the victim spoke to the offender on the phone for the first time. They began to speak daily. They met in person a week after the first phone call. At the meeting, the offender told the victim that he loved her and that he wanted to marry her. The victim said, “We don’t know each other much. We should get to know each other more. We’ll try to get out together more, and after we’ll decide.” The pair went on more outings, and on each occasion the offender asked the victim when they were going to get married.
3. On 24 September 2017 the victim and the offender had an Islamic marriage ceremony at an Auburn Mosque. The victim moved in to live with the offender at his rented apartment on Bungalow Street, Bankstown, on 27 September 2017. The victim had earlier agreed to move in to live with the offender, according to the victim, on the basis that there would be no sexual intercourse between them until their marriage had been made official through registration with the Australian government.
4. That night, the offender asked the victim to have sex with him. The victim said no to his request. The offender continued asking the victim to have sex with him on each following day, and on each occasion the victim would say, “No, not before the official marriage.”
5. On 1 October 2017 the offender returned home from working as an Uber driver at about 2am. The victim was asleep in bed but stirred when the offender came into the bedroom. The victim was wearing shorts, a T-shirt, underwear and a bra. The offender was taking his clothes off. The offender said, “It has to be today, so I take your virginity and I do sex with you.” The victim said, “Not before the marriage is official.” The victim got up and said, “Today I don’t want sex to happen between us.” The offender was very persistent and said, “Today is the day.” The victim said, “I don’t want this thing.” The offender told the victim, “You are my wife. I own you, and I have the right.”
6. The victim walked towards the toilet. The offender said, “Today I will have sex with you.” The victim said, “No, not before the marriage is official.”
7. When the victim returned to the bedroom the offender was nude. The offender walked to the bathroom, and the victim got into bed. The victim covered herself with the blanket.
8. The offender returned from the bathroom, naked, about ten minutes later. The offender said, “I am ready for sex.” The victim said, “I am not ready.” The victim and the offender then engaged in a verbal argument for five to ten minutes.
9. The offender approached the victim and pulled off the blanket. The victim said, “Let’s just kiss and hug, but no sex.” The offender then pointed down toward the ground and said, “Today.” The offender also said, “Today means today.” The victim said, “Don’t come near my private parts.”
10. The offender took the victim’s shirt off. When the offender did this, the victim said, “No, not today.” The offender kissed the victim on the neck and said that he loved her. The offender removed the victim’s bra. The offender also removed the victim’s shorts and underpants. When the offender did this, he pulled the victim down. The victim was then lying on her back. The offender positioned himself between the victim’s legs. The victim said, “Let’s just postpone. Let’s just postpone it to next week. We’ll have a new flat/apartment with a new bed, new blankets, new covers, new linens.” The offender’s penis was fully erect. The victim pulled her legs together. The offender opened the victim’s legs. The offender got angry when he did this and said, “Don’t make things harder for both of us.” The offender opened the victim’s legs. The victim kept begging, “Let’s delay it. Let’s delay it.”
11. The offender then put his penis into the victim’s vagina. The offender was finding it difficult to do this. The victim was in pain. The victim pushed the offender away from her. The victim also said, “Stop. Stop. Don’t continue.” The offender inserted his penis into the victim’s vagina again, causing extreme pain. The victim’s body was cramping. The victim pushed the offender’s chest with both of her hands in an effort to remove him from her. The victim said, “Let’s postpone it.” The victim also said, “I am in extreme pain.” The offender thrust his penis in and out of her vagina until he ejaculated inside her.
12. The offender then said, “It’s finished.” The offender told the victim that he had seen blood. The offender also said, “You have inflicted this pain on yourself because you were tensed.” The victim noticed blood. The offender went to sleep. The victim went to the toilet to wash herself. The victim was crying due to the pain. The victim later went to sleep.
As I have said, that is the version contained in the Crown’s assertion as to the facts that should be found on sentence.
I note that the offender’s version in evidence was that in fact, having returned home at a particular stage that evening, the victim indicated to him two separate, coloured sets of lingerie, asking him which he preferred her to wear that night. He selected one, and, in due course, they engaged in consensual sexual intercourse. Clearly, the jury did not accept that the intercourse occurring on that evening was consensual. That, of course, does not mean that the jury accepted all of the facts advanced by the complainant as having occurred that night.
I note that Exhibit E1 at trial was a sequence of text messages, in particular on 22 August 2017, which is a date during what might be referred to as their courtship period. The following messages were sent between them from 12.38am:
“IH: Nader, what did you do to me today? I’m melting till now.
NADER: You know I’m the one who’s melting. For the first time I feel how cold and freezing my bed is.
IH: Ha ha ha. I warmed you.
NADER: No.
IH: Even thought you’re huge.
NADER: You burn me with your warmth.
IH: Why am I ill-mannered? My temperature is high?
NADER: No, you’re very well mannered.
IH: Are you making fun?
NADER: Your heat burns the sun.
IH: You are making fun, aren’t you?
NADER: No, I swear. Never.
IH: I’m hot.
NADER: Extremely.
IH: I mean, do you like hot girls or cold girls?
NADER: Hot, of course.
IH: Why did you feel that I’m hot? I’m cold, poor thing.(smiley face emoji)
NADER: Because you are full of feelings. No, you are not cold at all.
IH: Well the important thing is that you did not hate the trait of hotness in me, rather, you loved it, my love.
NADER: No, this is something I love a lot about you.
IH: Thank God.
NADER: And what about me, what did you feel about me, cold or hot?
IH: Hot for sure.
NADER: Okay. So do you like a hot or a normal man?
IH: Hot.
NADER: So you think I know how to move your feelings?
IH: After marriage I will know that, there are restrictions on my relationship with you now.
NADER: Of course, my love.
IH: So you think I know how to move your feelings?
NADER: Professional.
IH: Professional. I am proud of your testimony.
NADER: My dear you have an ISO certificate?
IH: I haven’t done anything yet.
NADER: Ha ha ha.
IH: Okay. I won’t do. What will happened?
NADER: Is there more than this?
IH: There is a lot.
NADER: Like what?
IH: Still young. When you get older.
NADER: But I’m grown up, my dear.
IH: But it’s shameful.
NADER: There is no shame in marriage.
IH: Okay. I’ll tell you after marriage.
NADER: Ha ha ha. Okay. There’s no shame in love.
IH: It’s shameful, my son. Now you will get embarrassed.
NADER: But I want to know, mum.
IH: There will be foreplay in the place where you put your hand on.
NADER: How?
IH: Lick and kiss.
NADER: Really?
IH: If you don’t want, forget it, okay?
NADER: I want anything from you.
IH: With pleasure, my heart.
NADER: I love everything you do because it’s from you. I will do anything you want me to do.
IH: My love, do whatever you desire. I won’t force anything on you.
NADER: No. I will do what you like.
IH: Okay. I like everything.
NADER: Okay. Then I will do everything.”
“IH: I don’t know anything.
NADER: I’m evil, you see how. I know that you don’t know anything.
IH: But if you arouse me, I do strange things coming from my good nature, I swear to God.
NADER: Yes, my love.
IH: I swear to God.
NADER: About what?
IH: When you become my husband.
NADER: What will happen?
IH: I will eat you.”
“NADER: You’ll eat me from where?
IH: From everywhere. I want you to forget the world with me.
NADER: Why? What would you do to me?
IH: Inappropriate now. This should be done, not talked about.
NADER: Okay. Tell me a little bit.
IH: No. Inappropriate.
NADER: Give me an idea.
IH: If I talk, I’ll get aroused, then what will I do with myself alone? There’s no one in front of me but Mama Shadia.
NADER: Ha ha ha. She’ll teach you a little from her experience.
IH: I’d attack Mama Shadia, hug her and say, ‘Sorry. I thought you were Nader El-Eraky.’”
In short, in relation to the text messages, each is indicating a strong, physical interest in the other, and there is no indication that it is in some way dependent - that is, any future sexual activity - is somehow dependent on a registered Australian marriage, rather than an Islamic marriage.
The offender had shown consideration to the complainant’s desire not to have sexual intercourse at least for the first five or so nights of the marriage. After that night, the victim took a photograph of tissues on which was blood, as I understand it, being the result of the consummation of the marriage that night.
An English translation of the message she appended to the photograph, presumably sent to relatives, was:
“October 1, 2017, on the night of my wedding to the love of my life, my precious and rare husband, Nader.”
“On September 24, 2017, my marriage contract was signed. On the night of the first of the tenth month in 2017 at 3.30 it was the night of my wedding to the love of my life whom God and my heart chose, Nader. It was a beautiful night, but very, very painful.”
In my view, the note is somewhat inconsistent with what she now claims about the occurrence of sexual intercourse on that night.
In her evidence, she claimed that there was to be no sex until such time as the wedding had been registered and it is clear that she blames the accused for not registering the marriage with the Australian authorities.
There was no evidence produced in the trial as to the processes involved in registering an Islamic marriage with the Australian authorities. I suspect that all that was required was for the Imam to complete some paperwork and file it. Alternatively, it was not the sole responsibility of the offender to file such paperwork, but, in my view, it could have been done by either party to the marriage filing the appropriate paperwork with the Australian authorities at any time.
While a married woman is entitled to decline to have sexual intercourse with her husband at any time, the sexual intercourse on this occasion occurred after the offender, on the evidence, had shown considerable consideration for her desires, and, while her evidence disclosed some force, it was not of any significant or substantial nature, and her photograph and the communications in relation to it that she engaged in thereafter, in my view, are entirely inconsistent with her having been entirely upset by this event.
In relation to offences of sexual intercourse without consent, in the circumstances, noting that the Crown’s submission is that it was, objectively, a “very serious offence”. In my view, considering the doubt I have about some of the evidence that was given in relation to what occurred and her conduct thereafter, I am of the view that it is objectively at the low end of seriousness for such offences.
While I have yet to deal with the other offences that are the subject of sentence, I note that in relation to the bulk of the common assaults and assaults occasioning actual bodily harm, the Crown in general refers to them also as each being objectively “very serious”.
As to Counts 3, 13 and 31, which involved spitting on the complainant in circumstances in which he knew that she suffered from Obsessive-Compulsive Disorder (OCD), the Crown describes them as being “particularly serious”, and Counts 7 and 15, being two of the counts of assault occasioning actual bodily harm, are also described as being “particularly serious”.
In relation to the three counts concerning offences of intimidation, they are also described by the Crown as being “very serious”. Count 20, destroy property, being the mobile phone, is also described as “very serious”.
There was almost no material put before the Court on behalf of the offender, and certainly little other than passing comment in relation to the seriousness of any offences.
It is appropriate as a general comment to say that I do not accept the Crown’s assertions as to the seriousness of any of the offences. In my view, in the absence of the sexual intercourse offence, there is no reason why all the other offences, if dealt with separately, could not have been dealt with in the Local Court, because they are, in fact, as a general proposition, low in seriousness.
There are of course of necessity some variations between the individual offences: spitting in the face of his wife, who he knew had a bad case of Obsessive-Compulsive Disorder is certainly more significant than many of the other offences. Her Obsessive-Compulsive Disorder related to potential exposure to germs and dirt and matters of that nature, to the extent that she would on occasions take three-hour showers in an endeavour to ensure that she had cleaned away all germs and/or dirt that might have been occasioned to her from being outside the home, wherever it was, on any individual occasion.
I accept that much of the offender’s conduct would have potentially inflamed IH’s OCD. Indeed, in her Victim Impact Statement she indicates that OCD did not, prior to her marriage, control her life, and that she was not isolated from people, and was able to manage its symptoms. However:
“I was officially diagnosed with it after my marriage to Nader, because my symptoms increased significantly and I lost control over the disorder. The more the symptoms increased, the more Nader abused me, and the more Nader abused me, the worse the symptoms became. I was trapped in a painful, never-ending cycle. My illness was very disturbing to Nader, and to anyone else who would live with me, my illness would also be disturbing to them.”
In a moment I will return to the individual charges. The evidence in respect of Count 3 was that the offender and the victim argued about his clothing after he had returned from TAFE, and that the offender cornered the victim in the living room; hit her three times with a closed fist to her right upper arm and spat at her, with the spit landing in her eyes and mouth, and dripping down her jaw. However, the specific conduct relied on in respect of Count 3 was his physically assaulting her by spitting at her, with the spit landing in her eyes and mouth.
Count 3 was a charge of common assault. As I have already said, I regard those offences involving spitting in her face as being more serious than other charges of common assault, amongst the many. This is, perhaps, in my view, a significant offence, but not at the high end of the range, and below the mid-range, for want of a better description.
Count 4 is an offence of stalk/intimidate intend fear. When the offender approached the victim about her having contacted his sister, as I understand it, in Egypt, and reporting his conduct to his sister, he is said to have intimidated the victim by informing her that she was not to report any matter to the police, and that the police would not be able to protect her. As I see it, the intimidation arises basically from the assertion that the police would not be able to protect her, implying that she should not speak to them for fear of what he might do. In my view, this is in the lower end of seriousness for an offence of intimidation.
Count 5 was an offence of assault occasioning actual bodily harm. The offender followed the victim, yelling at her about her cleaning, until she was cornered by him when he punched her in the arm, leaving bruises on her arm.
There were a number of matters in relation to his offending in relation to which photos were produced by the victim that she had taken at the time of the bruising. None of the bruises in any of the photographs was significantly larger than, perhaps, the diameter of a 50-cent piece, or only slightly larger. In my view, again, the offending falls towards the lower end of seriousness for an offence of assault occasioning actual bodily harm, considering what actual bodily harm may, in general, include, being much more serious injuries.
As to Count 7, it was another offence of assault occasioning actual bodily harm. The offender and the victim were arguing about her cleaning and her OCD. He picked up a metal button that was on the bed and threw it at the victim, hitting her on the left upper eyelid, causing pain, and leaving a bruise which can be seen in the photograph. Considering the nature of the weapon, the bruise is of a minor nature. It was fortunate that the metal button struck her eyelid, rather than her eye itself which might have caused more significant damage. I find that that is in the lower end of seriousness for assault occasioning actual bodily harm.
Count 8, assault occasioning actual bodily harm. The offender began arguing with the victim about her cooking and cleaning. He rolled up a towel and raised it above his head, slamming it down forcefully a number of times over the victim’s arm, and slapping the victim with his hand, with his fingers apart. The slap left a red mark on the victim’s forearm. Again, this is at the lower end of seriousness for offences of assault occasioning actual bodily harm. There is no evidence as to how long the red mark remained, but it is likely it would have dissipated within a small number of days.
Count 9, again, assault occasioning actual bodily harm. The offender commenced shouting at the victim about her having moved his papers, then slapped her hard on the arm, causing her to cry out in pain, and leaving red marks and an abrasion on her upper arm. This is more serious than some of the other assaults occasioning actual bodily harm, but still not a particularly significant incidence of actual bodily harm.
Count 10. The victim, because of her OCD and fear of germs and dirt, refused to close the garage door. The offender then closed the garage door and punched the victim’s right arm hard enough to cause a bruise. He then also wiped the hand he had used to close the garage door on the victim’s face and mouth. Relied on in respect of that offence is his punching her arm, causing a bruise. Again, in my view, it is at the lower end of seriousness.
Count 11 was a common assault, described as the offender kicking the victim’s head several times. It did not result in any injury and accordingly is dealt with as a common assault and is at the lower end of seriousness, no matter how offensive it may have been that he kicked his wife in the head.
Count 12. There was some upset about the victim using a neighbour’s telephone as they were walking in the basement of the apartment complex towards the car, at which time the offender pushed the victim’s back with two hands from behind, causing her to fall onto her hands and knees. In my view, this, again, is at the lower end of seriousness for such an offence, no matter how offensive it may have been to her.
Count 13 was, again, an offence of common assault. They were then in the car, which the offender was driving, when he commenced screaming at the victim, as well as verbally abusing her. He then spat on her, with the spit landing on her face. As I have previously indicated, I regard this as a more serious form of common assault, particularly considering her condition of OCD.
Count 14 was an assault occasioning actual bodily harm. The victim was putting clothes into the clothes dryer when the offender punched her in the shoulder with a closed fist, causing a bruise. Again, this is not at the serious end of occasioning actual bodily harm.
Count 15. The victim had wiped the offender’s phone with sanitiser, which she apparently did on a regular basis. The offender screamed at the victim for having touched his phone and stood up and slapped the victim hard across the right side of her jaw and ear. Her evidence was that she experienced spinning and could not close her mouth for three days or hear properly for four weeks. I note there was no medical evidence or suggestion that she had attended for medical treatment, and the evidence as to the extent of the injury relied entirely on her description. I will return to that later.
Count 17 was an assault occasioning actual bodily harm. The offender complained that the victim had not washed his jeans properly and punched her in the chest with a closed fist, causing a bruise. There was a photo of the bruise, which was not in my view of particular significance, and appears to be more properly described as a relatively small yellow discolouration. However, for assault occasioning actual bodily harm, in my view, it was not a serious example.
Count 18. The victim was lying on the bedroom floor while the offender was in bed, when he suddenly punched her right thigh, causing her pain and bruising. There was a photograph of this bruise, which was not of a particularly large, or significant, nature. Again, it is at the lower end of seriousness for an assault occasioning actual bodily harm.
Count 19. The victim having seen a lizard crawling through, or over, the offender’s shoes was caused by her OCD to wash them. The offender was apparently upset by this, and pushed her from behind, causing her to fall to the ground, stating that he would hit her where it would not show any marks, and then slapping the victim’s face and neck hard with an open hand. The conduct relied on for the common assault was slapping her face and neck with an open hand. In my view, it falls towards the lower end of objective seriousness.
Count 20, an offence of destroying property. The offender took the victim’s phone and threw it against the wall, causing a hole to the wall, but that is not the damage relied on, and apparently the phone was still working after that conduct. The offender then grabbed a bottle of hand sanitiser and emptied it onto the victim’s phone, causing it to be destroyed or unusable, and sarcastically informed the victim that he had “sanitised her phone.” The conduct relied on in relation to the destruction of property is destroying her phone by applying the hand sanitiser to it. There is no evidence as to the value of the phone, but I am going to assume that it was in the range of a thousand dollars. Again, in terms of destruction of property, it falls into the lower end of objective seriousness.
Count 21 is an offence of intimidation. The offender apparently forced the victim to take a shower in his bathroom rather than hers, and before doing so, intimidated her by informing her that she could only shower for 20 minutes, and that if she took longer than 20 minutes he would come into the bathroom and pull her out of the shower by her hair. Presumably, she took less than 20 minutes, because there is no assertion that he did extract her from the shower by her hair. I accept his evidence that this was at a time when there were restrictions on water in the Sydney area, where they were living, and that even a shower of 20 minutes is of considerable and, perhaps, unnecessary length, except for someone suffering from OCD. I would find that this falls, again, in the lower end of seriousness for intimidation, as it was verbal only.
As to Count 22, being common assault, they had agreed to go to the beach, although he informed her that he thought she did not deserve to go because she was “crazy”, and she asked him to wear a different belt to the one he had put on, because she considered the one that he was wearing to be dirty. He reacted to her request by shouting at her and spat on her, with the spit landing on her face and eye, and then using the dirty belt, which he had folded in half, to hit her all over her body.
She informed him that she felt disgusted with the belt, and that it was causing her double pain when he hit her, because the belt was dirty. He threatened to throw her and her belongings into the street if she declined to go to the beach. However, the conduct relied on in respect of this count is not him spitting on her, but his assaulting her by hitting her with the belt all over the body. This is a more serious common assault than many of the others that have been referred to.
As to Count 23, which is again a common assault during the drive to the beach, the offender repeatedly spat on the victim’s face. As I have previously said, the common assault involving spitting on her face is more serious, particularly because she suffered from OCD, and, indeed, any citizen, whether a wife or not, would be highly upset by someone else spitting in their face.
As to Count 24, a further offence of common assault, they had been invited to attend a party, and, having attended there, the hostess had provided a bowl of takeaway soup for the offender made by the hostess. When they returned home, the victim threw away the soup; the offender subsequently pushed her forcefully from behind, causing her to fall to her knees, and took one of his shoes and hit her all over her body. During the course of that, he swapped shoes and continued to hit her while verbally abusing her. The conduct relied on in respect of the common assault is hitting her with the shoes all over her body. In my view, this, again, falls towards the lower end, if not at the lower end, for a common assault. I note that in some Middle Eastern countries even throwing a shoe, sandal or slipper at someone is regarded as highly offensive (George W. Bush Iraq - 2018).
Count 25, again, common assault. The offender was said to be angry with the victim because of what she had made him for lunch, and was yelling at her, before he hit her to the body with a thong, described by her, in her evidence, as “thick and heavy”, and threatening to hit her more if she moved. As she went down some stairs, he threw the thong at her head. As his aim was inaccurate, it hit a glass light fixture on the wall, which fell to the floor and shattered. Some of it may have fallen on her, but it was not his intention to cause the glass light fitting to shatter and fall on her. It was intended for the thong to hit her rather than the fixture. The conduct relied on was what I previously referred to as his hitting her body with the thong. This, again, is at the lower end of seriousness for a common assault.
Count 26. The offender was yelling at the victim about her OCD and hit her in the back, and grabbed her hair and pulled it, causing her to scream in pain. He picked up what is referred to as a bathroom slipper and hit the victim’s face with it, telling her, to add insult to injury, that he had dipped the slipper in the toilet. Whether he had or not, it was obviously designed to make her feel even worse, considering her OCD and her fear of germs and the like. The conduct relied on in respect of Count 26 was physically assaulting her by hitting her with the slipper. In my view, this is, again, towards the lower end of seriousness for a common assault.
Count 27. The offender attended at a Woolworths store to pick up the victim and was complaining that she had not done the shopping on a previous day, and verbally abused her, before spitting on her face. The common assault was the spitting. I have already referred to regarding spitting on her as being a more serious form of common assault.
Count 28, again, common assault. The offender was angry with the victim because his underwear was not dry, and yelled at her, telling her to shut up, because he did not want to hear her voice. He followed her to the living room, where she pushed his stomach to create distance between them, and the offender then slapped the victim to her face and mouth. She was crying and hysterical, and he, again, told her to shut up, because he did not want to hear her voice. I regard this as being towards the lower end of seriousness in relation to a common assault. I note, of course, that there have been some recordings played during the course of the trial in relation to which each of them can be heard speaking to each other in Arabic, and it is fair to say that they equally scream at each other.
Count 29, common assault, again. The offender followed the victim upstairs, verbally abusing her, and cornering her. He told her that he would hit her even harder if she touched him. He then slapped the victim’s neck repeatedly and grabbed her by the hair, causing her to scream in pain. The conduct relied on for Count 29 is his grabbing her by the hair, causing her to scream out in pain. Again, I do not regard this as being a particularly serious form of common assault.
Count 30, again, common assault. The victim was endeavouring to retrieve the offender’s phone to call the police, and as she walked towards where it was, he pushed her from behind, causing her to fall. She was then lying face down on the floor and he put a foot on her back, pressing hard, while she screamed. The victim then ran upstairs, after the offender had taken his foot off her back. He pursued her. The conduct relied on is his assaulting her by putting his foot on her back and pressing hard, while she was lying face down on the floor. Again, I do not regard this as being a particularly serious incident of common assault.
Count 31, again, common assault. The offender had the victim cornered on the top floor of the residence. He pressed hard on her chest with an open hand, forcing her back to the wall, and then spat on her face, with the spit landing in her mouth and eyes. Again, as I have said, this is a more serious form of common assault than many of the other offences. Although as part of that incident, the offender slapped the victim’s face and head; what was relied on was his spitting on her face, his spit landing in her mouth and eyes.
Count 32, is again common assault. The victim was sitting on the bedroom floor when the offender, who was getting ready for work, without provocation kicked her several times to the head. This is also a more serious form of common assault than many of the other instances.
Count 35, again, common assault. The victim had prepared breakfast for the offender. When he came down to eat, he placed a small device in front of the television. She asked him to remove the device, which he refused to do, and he became infuriated. It was apparently a television remote, which he picked up and used to hit the victim’s body with it while verbally abusing her, and then demanding repeatedly, that she stand up and sit down. In my view, this is towards the lower end of seriousness for a common assault.
Count 36, again, common assault. The victim eventually walked upstairs, followed by the offender, who was verbally abusing her. She tried to escape him by going back downstairs, but he caught up with her and hit her once with a thick slipper, causing her pain. She kept moving down the stairs and he threw the slipper at her, hitting her between the shoulder blades. They subsequently went to each of their respective bedrooms. The conduct relied on in relation to the common assault is throwing the slipper at her, with the slipper hitting her between the shoulder blades. Again, this is in my view towards the lower end of objective seriousness.
As to Count 37, this is an offence of intimidation. The victim had walked out of her bedroom and the offender came out of his bedroom and told her to stay in her room. She said she wanted to eat, and he intimidated her by informing her of the following: that he would, or was able to, commit a heinous crime if she did not quickly go back to the bedroom; that the police would come; and that the people would witness the heinous crime that he would commit against her. As a result, she returned to her room and did not leave her room until the next morning. As intimidation, it was merely verbal, and, in my view, at the low end of seriousness.
Finally, Count 38. Again, an offence of common assault. The offender came down from his room for lunch and told the victim to go to her room because he did not want to see her. He then grabbed a water bottle, which had been on the table, and threw it at her, as well as, subsequently, picking up two further 2-litre water bottles from the floor and throwing those at her and hitting her body, causing her pain. She then ran to her bedroom and remained there until the following morning. Again, I do not regard this as a particularly serious form of common assault.
Before their marriage it does not seem that the OCD was particularly evident, but the offender’s evidence was that he was unaware before he married her that she suffered from OCD. The victim’s evidence, as available from her Victim Impact Statement, is that she was not in fact diagnosed with it until after she had come to Australia and been abused by the offender, and that her condition was exacerbated by his conduct. I accept that as truthful. She said:
“When Nader realised that I could not change my OCD and could not be the way he wanted he confronted my illness with extreme violence and cruelty, and this made my psychological suffering even harsher and more severe.”
I accept that that makes common sense. However, in my view, there was a degree of exaggeration in the victim’s evidence about the effects of the individual offences on her, and the overall conduct over the period of time that they were married. I do not say that to indicate that I have formed the view that she was lying in any of her evidence, but, in my view, it is a likely result of her suffering from OCD, and having, in the circumstances, an exaggerated reaction to some of the conduct itself.
I have noted, in relation to her evidence at trial that she was unable to confine herself to directly answering many questions or limiting her answer to what had been asked. Her evidence was given by way of an Arabic interpreter. On many occasions, she would give an answer in Arabic and then correct the interpreter’s English interpretation. She was also prone to giving an answer which would be interpreted and then to immediately add an additional instalment to the answer, on occasion, more than once. Although specifically directed on at least two occasions to listen to the question asked and to give a single, comprehensive answer, she continued to give evidence by way of segments, or additions.
I have no doubt that suffering as she did from OCD, which is accepted, that much of the offender’s conduct would have had a far greater effect on her than on any non-sufferer. She noted herself, in her Victim Impact Statement that her OCD illness was disturbing to the offender and acknowledged that it would be to anyone else who would live with her. Her requirement of the offender to accord with her ritualised conduct as a result of her OCD must have, in the circumstances, been exceedingly frustrating, and significantly contributed to his inability to act, on all occasions, in an understanding and empathetic manner. That, however, does not excuse his behaviour.
It is perhaps unfortunate for both of them that they did not at an early point conclude that their marriage was not one which was likely to result in harmony over the course of time, and separate.
The victim’s Impact Statement in English is an eloquent but lengthy document as to the effects of the offender’s conduct on her, which, as I have said, was more significant because of her condition; it apparently being now diagnosed as severe obsessive-compulsive disorder with post-traumatic stress disorder, anxiety, depression and social phobia, according to the Victim Impact Statement.
It is clear that she blames the offender for this, and the deterioration of the quality of her life. If the offender, prior to the marriage, was aware of her suffering from OCD, it was obviously not to the extent that it later developed, and it is understandable that, without a proper understanding of the disorder and/or appropriate assistance from experts, he had significant difficulty in coping with the incessant cleaning and need to be rigorous to avoid upsetting her.
I note that at one stage he was conducting work on behalf of the NBN in areas not at Lucas Heights, but in surrounding suburbs, and that this was enough to cause the victim to protest because of the possibility that his clothing might somehow have attracted radioactive particles, being a threat to her. Her perception of threats was, in my view, at least in some circumstances, not realistic, and that must have been significantly difficult for the offender to cope with on a daily basis. While that is some explanation for the offender’s ongoing conduct, it is, however, not an excuse.
As to subjective matters, there is little before the Court other than a Sentence Assessment Report, and what can be derived from his evidence at trial. The offender was almost 36 years of age when the offending commenced, and it continued over a period of approximately 5 years. He is now almost 40 years of age.
The offender was apparently born in Egypt and has no immediate family in Australia, although he maintains regular contact with his family members overseas. He has been in custody since the return of verdicts on 30 August 2025. He spent one day in custody prior to the trial. He has spent time during their marriage as an Uber driver, and immediately prior to his incarceration he was working as an NBN contractor. Having been in custody since the return of verdicts, he is currently employed in the buy-up shed in custody.
He has no relevant criminal history. He continues to deny guilt and has demonstrated no insight into the impact of his offending behaviour, maintaining, of course, that it did not happen. His discussion of the impact of the offending behaviour centred around the negative impact that the victim survivor’s OCD has had on his life, rather than the impact of the harm he perpetrated on the victim.
Clearly, the jury verdicts rejected his evidence at trial. There is no evidence of remorse or contrition, and the matter proceeded as a defended trial. He was assessed by Tarsha Berendsen, Community Corrections officer, on the revised LSI-R as being a low risk of reoffending but assessed by Community Corrections as an average risk of reoffending on the Static-99R assessment.
Considering his age and lack of offending before this period of approximately five years of marriage in which the offending occurred, I am of the view that it is reasonable to accept that he is a low risk of reoffending, rather than the average, determined by way of Static-99R assessment. They have now separated.
I accept that the offender would be at risk of reoffending if he were to find himself in the same circumstances as arose on this occasion; that is, married to someone who suffered to a significant degree from OCD and/or PTSD, but that in the absence of that circumstance, in my view, it is unlikely that he would reoffend.
I have taken all of those matters into account in order to determine the individual sentences. I propose to proceed by way of an aggregate sentence, and it is, accordingly, necessary that I provide an indicative sentence in relation to each offence, including an indicative non-parole period in relation to Count 1, as it is an offence to which a standard non-parole period is provided.
In relation to the offence of Count 1, sexual intercourse without consent, s 61I of the Crimes Act, the indicative sentence is a two-year sentence, with an indicative non-parole period of one year.
I should say before continuing that apart from the fact that many of these offences could have been dealt with in the Local Court, and apart from the fact that, considered individually, not as part of the five-year series of offending, many of them could have been dealt with without providing sentences of imprisonment. A sentence of imprisonment is clearly appropriate and the s 5 threshold being passed in relation to Count 1, and having provided an indicative sentence, I have determined that it is also appropriate to determine an indicative sentence in relation to each of the other offences, rather than providing non‑custodial indicative sentences.
Count 3, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 4, stalk/intimidate intend fear, s 13(1) of the Crimes (Domestic and Personal Violence) Act, the indicative sentence is six months’ imprisonment.
Count 5, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 7, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 8, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is three months’ imprisonment.
Count 9, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 10, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 11, common assault, s 61 of the Crimes Act, the indicative sentence is three months’ imprisonment.
Count 12, common assault, s 61 of the Crimes Act, the indicative sentence is three months’ imprisonment.
Count 13, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 14, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 15, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 17, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 18, assault occasioning actual bodily harm, s 59(1) of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 19, common assault, s 61 of the Crimes Act, the indicative sentence is three months’ imprisonment.
Count 20, destroy or damage property, s 195(1)(a) of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 21, stalk/intimidate intend fear, physical et cetera harm, s 13(1) of the Crimes (Domestic and Personal Violence) Act, the indicative sentence is six months’ imprisonment.
Count 22, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 23, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 24, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 25, common assault, s 61 of the Crimes Act, the indicative sentence is three months’ imprisonment.
Count 26, common assault, s 61 of the Crimes Act, the indicative sentence is four months’ imprisonment.
Count 27, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 28, common assault, s 61 of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 29, common assault, s 61 of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 30, common assault, s 61 of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 31, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 32, common assault, s 61 of the Crimes Act, the indicative sentence is nine months’ imprisonment.
Count 35, common assault, s 61 of the Crimes Act, the indicative sentence is six months’ imprisonment.
Count 37, stalk/intimidate intend fear, physical et cetera harm, s 13(1) of the Crimes (Domestic and Personal Violence) Act, the indicative sentence is six months’ imprisonment.
Count 38, common assault, s 61 of the Crimes Act, the indicative sentence is six months’ imprisonment
I have then turned my mind to the aggregate sentence, in circumstances where, in my view, having expressed a view about how many of these matters might readily have been dealt with in the Local Court, and/or dealt with by way of non-custodial sentences, and feeling that in the circumstances of having, in my view, to recognise that Count 1 passes the s 5 threshold, and impose an actual sentence of imprisonment for that. I then took the view that it was appropriate to provide an individual sentence of imprisonment in relation to each of the other matters, so that I could then impose a single aggregate sentence.
What is serious about this matter is that the offender committed all of the offences against his wife over a five-year period, knowing that she had a serious mental health condition, and he must have contemplated that his conduct was likely to adversely impact on her and her condition.
The aggregate sentence, taking into account all of those matters, including the indicative sentences is a sentence of four years with a non-parole period of two years. It will be backdated from 1 August by one day, so it starts on 31 July 2025. He will be first eligible for parole on 30 July 2027, and there is a balance of two years, commencing on 31 July 2027 and expiring on 30 July 2029.
I have varied the statutory relationship between the non-parole period and the balance of term, having found special circumstances as it is the offender’s first time in custody, and I perceive that he will be assisted to rehabilitate by a longer period of parole than if the statutory relationship is applied.
Could I suggest to both the parties that simply providing statistics is not terribly helpful, Mr Gauja, in relation to a matter that included so many counts, and Mr Crown, I think you provided a schedule of cases without any indication as to which cases you regarded as being referable. That, also, is not particularly helpful, although I have had regard to all of the statistics, and to the schedule.
NORRIE: Your Honour, the only other matter was the AVO.
HIS HONOUR: Yes.
NORRIE: Other than that, your Honour has covered everything.
HIS HONOUR: Yes. They should all be, in my view, regarded as domestic violence offences, and the offender and the victim are now separated and not returning to live with each other, I would believe.
NORRIE: That’s correct, your Honour, yes.
HIS HONOUR: Would an AVO of two years be sufficient?
NORRIE: The legislation appears to require the AVO to cover the term of imprisonment, and then an additional two years after the term of imprisonment ends, but that is, of course, subject to the Court specifying a different period if, in the opinion of the Court, there is good reason to impose a different period.
NORRIE: Yes, your Honour.
HIS HONOUR: I don’t think anything more than that is really necessary, in relation to Mr Eraky.
NORRIE: Yes, your Honour. Do I take it that would also cover the term of imprisonment, just so that it complies with--
HIS HONOUR: He’ll be in prison, so--
NORRIE: Yes, your Honour.
HIS HONOUR: Until he’s eligible for parole on 30 July 2027. Unless she goes to visit him, he’s not going to be able to do anything other than perhaps telephone her, and I doubt if he wants to do that.
NORRIE: Thank you, your Honour.
HIS HONOUR: If I’m in error, and I have to make an AVO for four years, then get back to me and I’ll do it in chambers.
NORRIE: Yes, your Honour.
HIS HONOUR: Do you understand that, Mr Eraky?
OFFENDER: Yes, your Honour.
HIS HONOUR: There are some provisions which we are forced to abide by and, as I have said, I don’t believe you will reoffend unless you are silly enough to enter into a relationship which has also the same sort of circumstances that this did; that is, a partner who suffers from a significant degree of OCD or like problem, all right?
OFFENDER: All right.
HIS HONOUR: I note that the matter has now taken approximately two and a half hours to deliver. Mr Crown, that’s why I avoided dealing with your first facts on sentence--
NORRIE: Yes, your Honour.
HIS HONOUR: --of 13 pages, as it would have taken, at minimum, another half hour at least which, in my view, was unnecessary. I will adjourn.
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R
Eraky [2025] NSWDC 512