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[2026] NSWDC 63
General information, not legal advice.
District Court of NSW
2026-03-20
Sutherland 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 Haidar [2026] NSWDC 63
Hearing dates: 18 December 2025
Date of orders: 20 March 2026
Decision date: 20 March 2026
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision: Aggregate sentence of 10 years’ imprisonment with a non-parole period of 6 years, at [175].
Catchwords: SENTENCING – Sentence following jury’s verdicts of Guilty – Sexual intercourse without consent– Intentional choking – Offending arising from two separate incidents with two separate victims – Sex workers – First victim was a “sugar baby”, met offender in hotel – Non-consensual penile-anal intercourse – Second set of offences occurred whilst on bail for first set of offences – Second victim was a masseuse at an erotic massage parlour – Forceful non-consensual penile-vaginal intercourse and digital penetration – Both victims physically restrained or pinned down – Both victims crying, asking to stop repeatedly while offender continued
SENTENCING – Offender aged in mid-late 60s, several physical ailments – Mental health issues – First time in custody – No prior criminal history – Offences committed whilst on bail
Legislation Cited: Crimes Act 1900 (NSW) ss 37, 59, 61I, 61J
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 53A
Mental Health (Criminal Procedure) Act 1990 (NSW) s 23
Cases Cited: Bhuiyan v R [2009] NSWCCA 221
Brown v R [2025] NSWCCA 30
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65
Imbornone v R [2017] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lloyd v R [2022] NSWCCA 18
Luque v R [2017] NSWCCA 226
R v Achurch [2011] NSWCCA 186
R v Alcazar [2017] NSWCCA 51
R v Dabboussi [2020] NSWCCA 111
R v Dixon (a pseudonym) [2025] NSWDC 408
R v EE [2023] NSWCCA 188
R v Hibberd [2009] NSWCCA 20
R v Jackson [2024] NSWCCA 156
R v Leary (CCA(NSW), 8 October 1993, unreported)
R v PGM [2008] NSWCCA 172
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Quinlin [2021] NSWCCA 284
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Robert John Hall [2017] NSWDC 240
R v Rushby [1999] NSWCCA 104
R v Sabbah [2025] NSWCCA 203
R v Smith [2016] NSWCCA 75
R v Tuala [2015] NSWCCA 8
R v Youkhana [2004] NSWCCA 412
Richardson v R [2025] NSWCCA 197
Vartzokas v Zanker (1988) 34 A Crim R 11
Wan v R; R v Wan [2019] NSWCCA 86
Category: Sentence
Parties: Rex (Crown)
Mohammad Siddique Haidar (Offender)
Representation: Counsel:
C Goodhand (Crown)
M Johnson SC & G Lewer (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Mardini Defence Lawyers (Offender)
File Number(s): 2023/00100625; 2024/00102258
Publication restriction: There is to be no publication of evidence that identifies or is likely to lead to the identification of either of the complainants in accordance with section 578A of the Crimes Act 1900 (NSW).
Mohammad Siddique Haidar stood trial before a jury of twelve from 17 September 2025 to 9 October 2026 in respect of an indictment containing a total of 9 offences relating to two complainants. On 25 September 2025 a verdict of Not Guilty was directed in respect of Count 6 on the indictment. On 9 October 2025 the jury returned verdicts of Guilty in respect of all 8 remaining counts on the indictment.
Counts 1 and 2 related to the first complainant, Ms Daisy Flower (a pseudonym), and events on 3 February 2022. Each count alleged that the offender had sexual intercourse with the complainant without her consent and knowing that she was not consenting, contrary to the provisions of s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years’ imprisonment with a standard non-parole period of 7 years’ imprisonment.
Counts 3 to 9 related to a second complainant, Ms Rose Jones (also a pseudonym), and events on 17 August 2023. Count 3 and Counts 5 to 9, each alleged that the offender had sexual intercourse with the complainant without her consent and knowing that she was not consenting, similarly a contravention of s 61I of the Crimes Act and with the same maximum penalty and standard non-parole period to which I have already referred.
Count 4 alleged that the offender intentionally choked the complainant without consent, contrary to s 37(1A) of the Crimes Act. That offence carries a maximum penalty of 5 years’ imprisonment. There is no standard non-parole period.
The offender was arrested and charged with the offences against Daisy Flower on 28 March 2023 and granted bail. He was on bail for those offences when the offences occurred against Rose Jones, some 18 months after the first offending. The offender was arrested for the offences against Ms Jones on 18 March 2024 and refused bail until 19 May 2024, a period of just over 2 months in custody.
The offender was then granted bail and he remained on bail until it was refused after a detention application by the Crown on 9 October 2025 following the return of the jury’s verdicts.
He has been in custody since that date, being a further period of approximately 5 months.
The first complainant, Daisy Flower, joined a dating website called PMeets.com in January 2022, the day after her 18th birthday. The website abbreviation stands for “Pay per Meet” and the complainant said that she joined the website because she was interested in “sugaring”. “S**ugaring” is a term used to describe an arrangement where an older man (“sugar daddy”) and younger woman (“sugar baby”) meet up and the older man pays for companionship, intimacy, and/or sex, by way of money, gifts, or other benefits. The complainant gave evidence that she had joined the dating website in order to obtain financial benefits.
The offender and Ms Flower met through the website and arranged to meet at the Mercure Hotel in Chippendale on 3 February 2022. The offender ordered an Uber which collected the victim from an address on the upper north shore in Sydney. They met at the Mercure Hotel in the lobby before going to a room in the hotel. Ms Flower had attended the arranged meeting in the expectation of sexual services being provided in exchange for money. The sum of $500 had been the subject of text communications between them in advance of the meeting.
Ms Flower was offered and voluntarily consumed alcohol and also ingested cocaine in the hotel room. Ms Flower had taken a number of sex toys with her to the assignation. In due course there was consensual oral sex performed by Ms Flower on the offender and also consensual penile-vaginal intercourse. Ms Flower gave evidence that the consensual activity took place for approximately 20 minutes. There was no condom used and no request that a condom be used. Ms Flower then went to the bathroom. On her return, she used some of the sex toys on herself.
Immediately following the use of the sex toys Ms Flower gave evidence that the offender turned her over and put his penis in her anus. She did not realise at first and asked him if he had put it in her “butt”. She described that after he said “yes” she was then upset because it really hurt. She said she asked him to stop and told him that anal was “her boundary”. She said she did not want to do it. She said he continued regardless and that she began crying. The offender told her to stop crying because it was a turn-off and he did not like it when girls cried. In her evidence in-chief she said she then went to the bathroom a second time where she took a selfie video on Snapchat of herself crying. She shared the video with a female friend. That video was shown in evidence.
This conduct, before she went to the bathroom, formed the basis of Count 1.
In her evidence in-chief, she described a second act of penile-anal intercourse having occurred after she returned from the bathroom. The circumstance with respect to the timing of Count 2 changed substantially during the course of her evidence. She described this second incident initially as having been more forceful. She described the offender pinning her by her wrists and thrusting his penis into her anus until he ejaculated.
In August 2023 the second complainant, Rose Jones, was working as a casual employee at “The House of the Rising Sun*”* (a pseudonym*),* an erotic massage parlour or brothel in Sydney. She was then 31 years of age. The women working at “The House of the Rising Sun*”* used false names with clients. Ms Jones went by the name “Delilah”.
“The House of the Rising Sun*”* took clients by appointment or as walk-ins. If they did not have a specific masseuse in mind or their preferred masseuse was unavailable, they could visit each of the available women for an introduction before returning to the receptionist and making their choice. Payments were made before services were rendered. Payments by card were made at reception and payments in cash were made directly to the woman providing the service. There was an effective “flat rate” for services which would be split between the woman and the business. The masseuses could then keep any payments for any extra sexual services for themselves.
The rooms at the premises included a massage table, a cupboard, a spa which could be used as a cushioned seat when covered, a toilet, a sink, and a shower. There was also a landline through which the women communicated with reception. That phone had a red duress button on it which was perhaps half a metre to a metre from the massage table. In cross-examination the victim agreed that she knew the button was there on the day of the events charged but had not used it.
On 17 August 2023 Ms Jones arrived at work at 9:30am. She was working in Room 4, which was her preferred room being slightly larger than the others. She had three clients that morning and was preparing to leave at around 2:30pm. Ms Jones was persuaded by the receptionist to stay for an introduction with the offender who had called ahead and was arriving shortly.
When the offender arrived at “The House of the Rising Sun*”* he was directed to the room being utilised by Ms Jones. On entering the room he asked if she did extra services and asked for a “full service”, which refers to sexual intercourse. She agreed and he paid her in cash. They briefly discussed condoms. She said in evidence that she generally did services with condoms but that he did not want to wear one. Ms Jones described the offender insisting that he not have to use a condom and she ultimately consented and agreed to have sex without a condom. The offender, pursuant to the normal procedure at “The House of the Rising Sun,” then had a brief shower.
The offender was naked when he emerged from the bathroom. The victim was wearing a bra and G-string and was leaning against the massage table. At the offender’s request she removed her underwear.
Ms Jones explained that the customary procedure was for the client to receive a normal massage on the table before extra services were provided. She said that the offender didn’t want a massage. They kissed. She performed fellatio on him, which was consensual but forceful enough by the offender to cause the victim to gag. As a result of the gagging Ms Jones pushed the offender away with her hands and moved away and then stood leaning against the massage table. She described the offender pushing her back onto the massage table and inserting his penis into her vagina. She was initially effectively sitting or halfway on the table. She explained to him that the intercourse was painful and asked him to slow down. The offender said words to the effect that he was enjoying it and that Ms Jones was very sexy. At that stage the intercourse was still consensual.
““Didn’t you hear me screaming?”**. She said, “Yeah”**. Then I just kind of like shook my head, like as in trying to explain to her, *“Why didn’t you do anything?”. So, I have explained to her everything that he have done, especially when he flipped me down when my face was inside the hole facing down, and I explained to her like everything that he have done, I’ve told her about the choking and everything, and her response was, “Well, next time don’t see him again”**. I said, “I’m not going to see him again but I want you to tell him what he did to me. I want you” she said like, she kind of said, no, like, she’*s not going to tell him, but I said, “I want you to tell him what he did to me was not right because he’s going to do it to other girls”.”
CCTV from “The House of the Rising Sun*”* depicted Ms Jones speaking with the receptionist a few times after the session as she prepares to leave. There is no audio attached to that footage, but Ms Jones’ gesticulations and gestures include placing her own hands around her throat in an apparent demonstration of choking.
Ms Jones described that she took the sheets and towels from the room downstairs in accordance with her usual practice, left to collect her daughter from childcare, and went home where she made complaint to her neighbour. She made further complaints to two friends before attending a hospital, and then a police station on 29 August 2023 and 8 September 2023 to provide her initial statement. The offender was then arrested for these offences in March 2024.
A medical examination of Ms Jones had been undertaken on 19 August 2023. The doctor, Dr Lee, made notes of a narrative complaint which was broadly consistent with the evidence given by the complainant at trial. Medical evidence was led from Dr Lee that he did not make any observation of skin bruising or other physical injury. He noted tenderness to the left forehead and mild tenderness to the front of her neck. Her lower throat was extremely tender. She complained of abdominal pain. A speculum examination of the complainant’s vagina found no visible injury. The doctor gave evidence that tenderness is a subjective symptom. He said that it would be unusual for such penetration as was described to cause abdominal tenderness and severe pain.
The offender’s subjective material was provided by way of a forensic psychology report by Dr Donald Rowe, letters from Professor Steven Boyages, Dr James Yeung, Dr John Kippen, and Dr Suhas Mahajan, and character references from Gary Thomas, Nicholas Harrow, Huma Haidar, and Ather Habib.
I note at the outset that, in accordance with the principles in R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, I should exercise considerable caution in relying on unsworn, untested, self-serving statements given to third parties such as psychiatrists. In exercising that caution, I remind myself that it may be wrong to take an unduly restrictive approach to such evidence, particularly when it may be supported by other evidence in the case: Luque v R [2017] NSWCCA 226 at [71]-[84]; Lloyd v R [2022] NSWCCA 18 at [46]-[47].
The offender was 64 years of age at the time of the first offences, and 65 at the time of the later offences. He is currently 67 years of age. He has no prior criminal history and there have been no infractions during his time in custody.
In the history provided to Dr Rowe the offender reported that he was born and raised in Pakistan. He had a happy and stable childhood in a middle-class family. The offender completed secondary schooling and some tertiary education in Pakistan before joining the Merchant Navy. He completed training and qualifications in Australia and Hong Kong. By 1986 he had reached the rank of Master Class 1. The offender described seafaring life as difficult, lonely, and isolating, and in 1988 he settled permanently in Australia. After leaving the Merchant Navy the offender transitioned into small business. However, many of his businesses suffered and were ultimately closed as a result of the Covid-19 pandemic.
The offender met and married his wife Huma Haidar in 1994. I note in passing that Huma attended each day of her husband’s trial in support. They have two children who are currently undertaking tertiary studies. The offender stated that his family is aware of the charges. He reported that the charges have caused substantial distress in his household. He said that his wife, a practicing Muslim, has struggled emotionally yet continues to support him.
The offender himself identifies as Muslim. He said that within his cultural and religious community allegations of this type attract extreme stigma. The offender reported that he and his family fear repercussions or harassment from their community should the detail of the charges become known. The offender stated that he felt considerable guilt over not being able to protect his wife and family, and concern over the negative stigma that his conviction could have upon his daughter’s career.
Both victims in the matter read their victim impact statements in Court at the sentencing hearing.
In her statement Ms Jones recalled the assault and described its impact on her. Having seen her late father’s face when she was blacking out, she said that every time she thought of her father, she was reminded of the assault. She described daily flashbacks, fear of men and of leaving her house, crying almost every night, and the difficulties associated with hiding these emotions from her autistic daughter for whom she cares.
In a more detailed statement Ms Flower described how the assault has affected her over the last four years. She noted that she was just 18 at the time of the offending, was lured into “sugaring” by a poor role model and by her own poor self-esteem. She described leaving after the assault confused, broken, vulnerable, and in pain. She said that she was ashamed that she had, in her mind, put herself in that position. She stated that she has since been diagnosed with PTSD, regularly reliving the assault in night terrors and panic attacks, resulting in extreme fatigue which impedes her ability to pursue her tertiary studies and even to maintain basic hygiene. She noted previous diagnoses of Major Depressive Disorder, Generalised Anxiety Disorder, and Borderline Personality Disorder, all of which have been exacerbated since the assault. She described self-harming more regularly and self-medicating with Xanax, leading to multiple hospitalisations from suicide attempts. She also described placing herself in a psychiatric facility before the trial.
Ms Flower said that her dreams of pursuing a career as a veterinarian have been diminished due to the impact of her mental health on her ability to study. I should note in passing that some of the documentation indicates she did attend university, although none of the material indicates how far she progressed towards her degree. She noted the impact on her family, to whom she feels she has become a burden, resulting in self-isolating from her support network. She outlined the impact of the assault on her first relationship, and having panic attacks at any attempts to have a sexual relationship.
Ms Flower shared some extracts from her psychiatric reports from 2022 to 2025 which describe her symptoms and their development over time in further detail. Those comments and the reported psychiatric history were supported by a letter from Dr Usula Ptok who noted her diagnoses, as at August 2025, including Borderline Personality Disorder, PTSD, Major Depressive Disorder in remission, Generalised Anxiety Disorder, Eating Disorder symptoms, and nicotine dependence.
In written submissions Ms Goodhand , counsel for the Crown, submitted that the offences against Ms Flower fell above the mid-range of objective seriousness given the nature of the intercourse as penile-anal penetration, Ms Flower’s explicit statement that “anal is my boundary”, that she was crying and asked the offender to stop, her comparative youth, and the force used.
The Crown submitted that Counts 3, 4, 5, 7, and 9 against Ms Jones fell in the mid-range to just above the mid-range given the nature of the intercourse as penile-vaginal and digital penetration, the greater force used in circumstances where she was crying and screaming, and as to the choking, the force used and the nature of the offending which was simultaneous to a sexual assault. In relation to Count 8, being the fellatio, it was submitted that this fell below the mid-range of objective seriousness.
The Crown submits that in respect of each offence the Court would be satisfied beyond reasonable doubt that the accused was aware that each victim did not consent, based on their words and actions.
In relation to aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Crown submitted that the circumstances of Ms Flower’s young age and the substantial emotional harm caused to her; the offences against Ms Jones being committed while the offender was on bail; and that each victim was vulnerable by virtue of their occupations, were each aggravating factors.
In relation to mitigating factors, the Crown conceded that the offences were not planned or organised, and the offender did not have any previous convictions.
The Crown submitted that the offender’s continuing denial of wrongdoing, his lack of remorse, and the fact that the second set of offences were committed whilst on bail, indicate that the offender does not accept responsibility for the offending and has only guarded prospects of rehabilitation. The defence conceded that there is no evidence of remorse. The Crown also suggested that Dr Rowe’s static risk assessment ought to be given less weight.
In relation to the offender’s age and physical and mental health, and the impact of those factors on the effect of his time in custody, the Crown conceded that the offender’s health issues would render imprisonment more burdensome than for an ordinary offender, and accordingly submitted that this may be a ground for the Court to find special circumstances. It was further conceded that special circumstances are open on the basis that this is the offender’s first time in custody.
It was noted however that the offender’s medical records indicate that he is currently stable and that, despite the offender’s concerns over receiving adequate treatment in custody, there is no evidence to that effect and both factors ought to be given only a modest allowance. It was conceded that the mental health issues would also have an impact on his time in custody.
In oral submissions for the offender Mr Johnson of Senior Counsel submitted that the offending against Ms Flower fell below the mid-range, and that the offending against Ms Jones fell at or around the mid-range. In response to the Crown, it was submitted that Ms Flower’s age and the emotional harm did not reach the level of being an aggravating factor. In relation to the force used, it was submitted that by comparison with Ms Jones, less force was used.
In relation to vulnerability by virtue of their roles as sex workers, it was suggested that this did not necessary fall under s 21A, but that there was certainly a degree of vulnerability to be considered in the broader aspects of the matter, noting the differences between the two: that Ms Flower met the offender at a hotel alone with limited knowledge due to age, background and experiences, whereas Ms Jones worked in a dedicated workplace with a receptionist and duress button available to mitigate risk.
In written submissions it was argued that the offender’s incarceration will continue to have a marked impact on his mental health with a risk of further deterioration, that he is unlikely to receive optimal care in custody, and that a custodial sentence will weigh more heavily upon him, warranting a finding of special circumstances. In relation to Dr Rowe’s report, it was suggested that the report was thorough and included two separate risk assessment methodologies with favourable results.
The defence submitted that following the offender’s release to bail in May 2024 he was subject to restrictive bail conditions which amounted to effective house- arrest. Those conditions were varied over time to facilitate further medical appointments and to remove an electronic monitoring condition. It was submitted that this period of 16 or so months from May 2024 to October 2025 on restrictive bail conditions amounts to quasi-custody in accordance with the principles in R v Quinlin [2021] NSWCCA 284.
It was lastly submitted that the Court ought to proceed by way of an aggregate sentence with a high degree of concurrency to reflect totality and the relatively brief course of conduct in relation to each complainant.
I acknowledge that comparative cases have limited utility in determining a sentence given that individual cases turn on their own specific facts and vary greatly in their subjective and objective circumstances. However, it suffices to say that reference to comparative cases in an overall way can provide some measure of the types of sentences passed in similar matters and act as a touchstone for comparison of a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]).
A number of the cases to which I will make specific reference relevantly relate to sexual offences committed against sex workers.
In R v Dabboussi [2020] NSWCCA 111 the Crown appealed against the inadequacy of a sentence for two substantive offences arising from separate incidents. The offender had pleaded guilty with respect to two substantive offences. The first offence was sexual intercourse without consent with a second act of sexual intercourse without consent taken into account on a Form 1. This was a charge pursuant to section 61I of the Crimes Act 1900 (NSW) carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years. The second substantive offence was reckless wounding with additional offences of common assault and hindering police taken into account on a further Form 1.
In relation to the sexual offending, the offender arranged to meet the victim, who was a sex worker, at her home for a “full service” consisting of a massage, oral sex, and penile-vaginal intercourse. Part way through the service, the offender requested to use sex toys that were in the room upon the victim. The victim told him this required an additional payment. The offender did not pay for the service but nevertheless forced a butt plug into her anus, being the substantive offence, and also into her vagina, being the Form 1 offence. On each occasion the offender was told that the use of the butt plug was not consensual. In the course of consensual oral sex, the offender also forced the victims face deeply into his genital area and struck her on the face leaving a red mark. A short time later, after using some cocaine, the offender became unresponsive. He appeared to be suffering from a drug overdose. After regaining consciousness he left the premises. The entire episode extended over a period of one and a half to two hours.
It is not necessary for present purposes to set out the details of the separate wounding offence which arose some 12 months later and involved the use of a knife following a road-rage incident.
The offender was 28 years of age at the time of sentence. He had family support and suffered from moderate and ongoing Substance Use Disorder. The offender was not remorseful or contrite but continued to have “ ”. The offender refused to attend a sex offender’s program and was consequently found lacking in insight into his behaviour and need for treatment. His prospects for rehabilitation were extremely guarded. He had a minor criminal record however the substantive offences had been committed while he was on conditional liberty. There had also been institutional misconduct charges in relation to his ongoing drug use.
“The evidence I have already noted shows that the complainant clearly and repeatedly indicated her lack of consent to the applicant’s sexual advances. She then came up with excuses as to why sexual intercourse should not take place. He was determined to have penile-vaginal intercourse with her irrespective of this and he effectively forced her to remove her tampon to facilitate this. He pinned her wrists down and then subjected her to penile vaginal intercourse whilst he was on top of her. After all of that had taken place, he subjected her to the degradation of performing oral sex on him.”
It may be viewed as somewhat surprising that in the light of such clear and repeated indications, indeed verbal statements, of lack of consent that the original sentence, and the re-sentencing exercise pursuant to Kentwell in the Court of Criminal Appeal, proceeded on the basis that the offender did not have actual knowledge that the complainant was not consenting.
The next comparative to which I will refer relevantly involved an assessment of the objective seriousness of offences of choking charged pursuant to section 37(1A) of the Crimes Act 1900 (NSW).
R v Sabbah [2025] NSWCCA 203 was a Crown appeal against the manifest inadequacy of sentences imposed in the District Court with respect to 10 sexual and physical domestic violence offences committed by the offender against his then wife. The offending had occurred during the 9-month period immediately following their wedding and included 4 offences of sexual intercourse without consent contrary to s 61I of the Crimes Act (counts 1, 2, 3 and 5); 4 offences of intentionally choke without consent contrary to s 37(1A) of the Crimes Act (counts 4, 6, 8 and 10); and 2 counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (counts 7 and 9).
The intercourse offences included penile-vaginal and penile-anal penetration in circumstances where the victim was crying and screaming while the offender covered her mouth.
The choking offences did not occur in the context of sexual intercourse, but in the context of arguments where his wife refused to go out with the offender’s brother, refused to go to the beach with the offender and his brother wearing a short dress without any underwear which he had requested her to do and other domestic situations in which he had lost his temper. The choking included instances where the victim could not breathe or move and thought she was going to die. On one occasion she could not speak for two days after the choking.
The offender pleaded Not Guilty but was convicted of the offences by a jury. He maintained his innocence and was assessed as having a medium risk of reoffending. The offender was 48 years old at the time of the offences. He had no prior criminal history and had been of good character. His time in custody had a significant impact on his mental wellbeing.
At first instance David DCJ imposed indicative sentences of approximately 3 years for each of the sexual intercourse offences with non-parole periods of approximately 2 years, and indicative sentences of 6 months and 8 months for two of the four choking offences. An indicative sentence of 6 months was passed for one of the assault occasioning offences. The aggregate sentence passed was 5 years and 3 months imprisonment with a non-parole period of 3 years and 3 months.
(1) The nature of the relationship between the respondent and the victim, including that the conduct is domestic violence perpetrated on an intimate partner;
(2) The purpose or motivation for the conduct and whether the offence was committed in order to scare, coerce or control the victim;
(3) The force of the choking, suffocation or strangulation including the degree to which the victim was deprived of the ability to breathe;
(4) The duration of the offending;
(5) Any circumstances of humiliation or degradation accompanying the act; and
(6) Whether the offending caused any symptom or injury that persisted after the conduct ceased.
[108] As for factor (4), the duration of the offending, it is pertinent to note that the offence created by s 37(1A) does not have as an element that the choking is so severe that it causes the victim to lose consciousness or be rendered insensible or incapable of resistance. That is an element of the more serious offence caught by s 37(1) of the Crimes Act. Thus, the offence created by s 37(1A) captures offending where the degree and duration of the force, even at its most severe, falls short of causing the victim to lose consciousness, be rendered insensible or become incapable of resistance.
[109] It follows that if a victim describes being unable to breathe (as the victim did for count 8) or unable to swallow her own saliva (as the victim did for count 10), that is conduct which falls towards the more serious end of objective seriousness of the offence contrary to s 37(1A). Once the victim is rendered incapable of resisting, for example, then the offence falls into the more serious category of an offence under s 37(1). Similarly, given that a person can lose consciousness from choking in a relatively short period of time, the fact that the choking was only for a matter of seconds does not mean that it is not a serious example of this offence if, for example, the degree of force was severe.
The Court of Criminal Appeal ultimately determined that there was patent error in the objective seriousness of the choking offences having been assessed at first instance as falling in the “low range”**. The Court found that the indicative sentences were manifestly inadequate which, together with manifestly inadequate sentences with respect to the sexual intercourse offences, had contributed to a manifestly inadequate aggregate sentence.
With respect to the two choking offences which had resulted in Community Correction Orders being imposed, the Court similarly held that the imposition of CCOs reflected manifest inadequacy.
The Court proceeded to resentence and substituted indicative sentences of 18 months for 3 of the choking offences and 2 years with respect to the fourth such offence. Increased indicative sentences for the sexual intercourse offences of between 4 years and 5 years 3 months ultimately yielded an increased aggregate sentence on the Crown appeal of 9 years with a non-parole period of 6 years.
The next comparative to which I will make specific reference relevantly includes an offence of anal intercourse which continued after consent had been withdrawn.
In R v EE [2023] NSWCCA 188 the offender appealed against conviction and sentence with respect to 2 offences – one of assault and one of anal sexual intercourse without consent. The offender and the complainant were married at the time of the offences. The assault related to an incident in which the offender unbuckled the complainant’s seat belt and pushed her out of a car. The sexual offence related to an incident where the offender and the complainant engaged in anal intercourse after the complainant reluctantly agreed to do so. After a few minutes, the complainant repeatedly told the offender to stop but he did not, which culminated in her telling the applicant he was hurting her and sobbing “rather hysterically” while the offender said “Not much longer, I*’*m almost done” and continued.
The appeal judgment does not reveal the offender’s subjective circumstances. The offender had been fined with respect to the charge of assault and sentenced with respect to the anal intercourse to a term of imprisonment of 3 years with a non-parole period of 2 years. The appeals against both conviction and severity of sentence were dismissed.
The next comparative to which I make reference relevantly relates to a vulnerable complainant in respect of whom multiple counts of sexual intercourse without consent took place in a single sequence of events over a number of hours.
Richardson v R [2025] NSWCCA 197 was an appeal against the severity of an aggregate sentence imposed by McGrath SC DCJ in relation to five counts of sexual intercourse without consent contrary to s 61I of the and one count of intentionally recording intimate images without consent. The offences had occurred in 2023 in Newcastle and the offender had met the complainant at a local hotel while she was out celebrating her 20th birthday. She went with the offender to his house where they consumed cannabis and more alcohol. The complainant was severely intoxicated to a degree that she was incapable of consenting to sexual intercourse. She was subjected to a range of non-consensual and degrading sexual acts including the insertion of objects into her vagina as well as penile-vaginal and digital intercourse.
[61] In Wan the applicant, who was aged 69 at the time of the offences, had been charged with six counts of sexual intercourse without consent under s 61I and nine counts of indecent assault under s 61L, along with one count of administering an intoxicating substance with the intention of enabling himself to commit an indictable offence. The complainant was an 88 year old man. The two men had become friends following an excursion organised by a local council. The events in question occurred one day in March 2015 between about 9:00am and 5:00pm in the applicant*’s apartment. The applicant admitted the sexual conduct – all but one action of which he had recorded on video – but claimed it had been consensual. A jury found him guilty of all charges save for the following three: administering the intoxicating substance; one count of indecent assault in which (on the video) the complainant had appeared to participate; and the one count of intercourse which had not been depicted in the video. The trial judge imposed an aggregate sentence of 5 years 6 months, with a non-parole period of 2 years and 9 months. The complainant’s victim impact statement referred to how his life had change dramatically since the offending, similarly to this case.*
[62] A Crown appeal against the sentence was upheld on various bases, including manifest inadequacy. The applicant was resentenced to a term of 8 years with a non-parole period of 5 years. In so doing this Court found that the s 61I offences were just below the mid-range of objective seriousness (at [62] and [119]), and maintained the trial judge’s finding that the applicant had otherwise been a person of good character and had good prospects of rehabilitation (at [120]). The case has similarities to this one given the vulnerability of the complainant (albeit for different reasons), the fact that a number of offences were committed over the course of a few hours against one person, and that the offences were videoed (albeit there was no separate charge relating to that action in Wan). Both cases involved five counts under s 61I. Those offences in Wan were characterised as having somewhat lower objective seriousness than here (the sexual intercourse counts all involved fellatio). On the other hand, in Wan there were also eight convictions for indecent assault, compared to the one other count here relating to recording intimate images. Taken as a whole, this case represents somewhat more serious offending than what was addressed in Wan.
[63] In Jackson, being another Crown appeal against sentence, the defendant had been found guilty of four counts of sexual assault without consent contrary to s 61I after a jury trial. The charges involved acts of digital-vaginal penetration, fellatio, cunnilingus and penile-vaginal intercourse. The complainant was 19 years old and the respondent was 62 years old at the time of the offending. The complainant had gone to the respondent*’s farm to visit her brother (JM), who worked and lived on the farm. She had been accompanied by JM’s girlfriend. The offences were committed at the respondent’s house on his farm when the respondent entered the spare bedroom where the complainant was staying overnight. This Court considered the complainant was vulnerable “based on the combined circumstances of the age and power differential between her and the respondent, together with her geographical isolation” (at [66], note also [51]). That was so even given her brother and his girlfriend were sleeping in a shed nearby, and though the respondent’s 10 year old daughter and two male friends of his were sleeping in the house (see at [51]). The trial judge had sentenced the respondent to an aggregate term of imprisonment of 3 years 6 months with a non-parole period of 1 year 10 months. This Court held that sentence was manifestly inadequate, resentencing the respondent to a term of imprisonment of 6 years with a non-parole period of 4 years. In upholding the appeal McNaughton J, speaking for the Court, said this:*
[54] There is no doubt that this was serious offending. The combination of factors including the isolated location, the age and power differential between the respondent and the victim, the threat made calculated to negate resistance, the use of the respondent*’s full weight during the course of the offending, together with the placing of his hand on her neck during some of the offending clearly supports the finding of the sentencing judge that these were serious examples of offences under s 61I of the Crimes Act. Also notable is the lack of any contrition and remorse, and any particularly compelling factors in his subjective case.*
“While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others”
While each sexual act turns on its own facts and the type of penetration is not to be considered in isolation, I am mindful that penile-vaginal or penile-anal penetration, particularly without a condom, is generally considered more serious than digital penetration or fellatio: R v Hibberd [2009] NSWCCA 20 at [56]; R v Alcazar [2017] NSWCCA 51 at [38]; R v Rushby [1999] NSWCCA 104 at [19].
In relation to Ms Flower, the initial penile-vaginal intercourse without a condom was consensual. In relation to Count 1 she described being flipped over and then the penile-anal intercourse taking place. The intercourse continued after her comment that “anal is my boundary” and then crying and telling the offender repeatedly to stop. In relation to Count 2 she described being pinned down by her wrists. She also described Count 2 as more forceful. Ms Flower was unsure of the duration or timing of either offence.
The Crown case, as given in evidence in-chief by the complainant, was that the two acts of anal intercourse which she described had been temporally separated by her having got up and gone to the bathroom between the two separate events. As I have described earlier, in cross-examination she conceded that the description in her initial statement that there had been no further sexual activity after she had been to the bathroom was correct. In these circumstances, although the jury has been satisfied that what was described amounted to two separate acts, there will need to be a substantial degree of concurrency for what was essentially a continuing course of conduct.
Taking all of the circumstances into account, including the manner in which the initial penetration was described, the moderate level of violence in holding her wrists and my lack of satisfaction with respect to the potentially aggravating factor of ejaculation, I assess the objective seriousness of each of these two counts as falling below the mid-range of objective seriousness. To the extent that there are gradations in the level of seriousness, Count 2 would fall slightly above Count 1 in the complainant’s description of it having been “more forceful” and in the circumstance of it occurring after the non-consensual continuation of the act constituting Count 1. It would, however, still fall below the mid-range.
In relation to Ms Jones, the initial fellatio and then penile-vaginal intercourse was consensual. There had been a discussion concerning condoms and Ms Jones ultimately acceded to his repeated requests to have intercourse without a condom. It was when the offender flipped Ms Jones over onto her stomach and pinned her shoulder and legs down with his body that the offending constituting Count 3 took place. Ms Jones described telling him to stop and struggling to breathe due to the pressure on her back and her face being misaligned with the massage table’s face-hole. Ms Jones estimated that this intercourse took place for about 6 minutes.
“[R]ehabilitation has as its purpose the remodelling of a person*’*s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ).”
A person might be constrained from re-offending by factors other than rehabilitation. A person whose offending required physical strength that they no longer have due to age, illness, or injury will be very unlikely to re-offend, notwithstanding that they have not taken any steps towards rehabilitation. By contrast to the description in Pogson, such a person has not remodelled their thinking or renounced their wrongdoing. They simply lack the means and opportunity to re-offend.
Dr Rowe implicitly attributes the offender’s behaviour to his contextual psychological strain and maladaptive coping behaviours, described as clinically consistent with a Persistent Adjustment Disorder, which is an “emotional and behavioural disturbance arising from identifiable stressors which result in disproportionately high levels of distress, impaired coping, and behavioural change.” I will come to the impact of this diagnosis on his moral culpability shortly.
Dr Rowe expresses the opinion that the offender has positive prospects of rehabilitation, particularly if supported by ongoing mental-health treatment and appropriate medical care. There is no clear evidence before the Court to suggest that the offender has taken steps to seek treatment of his underlying mental health conditions. Mrs Haidar refers to the offender seeing a psychologist in her character reference. Dr Rowe, in his psychological report, notes that his assessment of the offender for the purpose of the report included a 2-hour audio-visual link on 8 December 2025. He says in his report that he had seen the offender previously, whilst on bail, “for related consults on five occasions between 28 May and 20 August 2025”. It is unclear whether those consultations were for the purpose of treatment or in preparation of the very extensive medico-legal report. Notwithstanding that lack of clarity, I am prepared to assume in the offender’s favour that these represent some steps towards rehabilitative treatment.
While the offender’s Adjustment Disorder is described as arising from contextual stressors, it is clear that those stressors have increased as these criminal proceedings have progressed, rather than diminished, and that his mental health continues to deteriorate.
I note Dr Rowe’s comment that the offender was highly compliant with supervision arrangements during his 17 months of extremely restrictive bail, indicating high amenability to supervision, low impulsivity, and strong adherence to authority. However, this opinion must be viewed against the circumstance of the offences against Ms Jones having been committed whilst the offender on bail for the earlier similar offending against Ms Flower. I am ultimately of the view that these circumstances, together with the offender’s lack of remorse, warrant a determination that he has guarded prospects for rehabilitation.
For abundant clarity I note that there is no discount with respect to a plea of Guilty given that the offender has maintained his innocence up to and since the jury’s verdicts of Guilty.
I am satisfied with respect to both victims that the acts of sexual intercourse which occurred were not only without consent, but that the offender had actual knowledge of the lack of consent. I reach that conclusion based upon an acceptance of the communications from each of the victims to the offender that they were not consenting and that he was told to stop. Contrary to the determination in Brown v R, I am satisfied beyond reasonable doubt that the offender was more than reckless and that his continued offending in the face of direct communications from each victim imbued him with actual knowledge of their lack of consent.
With respect to my assessment of the objective seriousness of Count 5, as falling in the mid-range, I intend to vary from the standard non-parole period specified by Parliament. I do so on the basis of the subjective circumstances of this particular offender, including his age, his mental condition at the time, and his ongoing physical and mental problems.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and in accordance with the submissions of each party, I propose to proceed by way of an aggregate sentence. I am required to indicate the sentences which would have been imposed were the matters sentenced separately. For each Count that attracts a standard non-parole period, I must also indicate the non-parole period I would have imposed.
By reference to the same factors as already noted and this being his first time in custody, I also make a finding of special circumstances with respect to the determination of an appropriate non-parole period.
The indicative sentences are as follows:
Count 1 (Daisy Flower – Penile/Anal): 5 years with a non-parole period of 3 years.
Count 2 (Daisy Flower – Penile/Anal): 5 years and 2 months with a non-parole period of 3 years and 1 month.
Count 3 (Rose Jones – Penile/Vaginal): 5 years with a non-parole period of 3 years.
Count 4 (Rose Jones – Choking): 3 years.
Count 5 (Rose Jones – Penile/Vaginal): 6 years with a non-parole period of 4 years.
Count 7 (Rose Jones – Penile/Vaginal): 3 years with a non-parole period of 2 years.
Count 8 (Rose Jones – Fellatio): 3 years with a non-parole period of 2 years.
Count 9 (Rose Jones – Digital Penetration): 2 years with a non-parole period of 14 months.
I impose an aggregate sentence of 10 years imprisonment. Taking into account special circumstances, there will be a non-parole period of 6 years.
I recognise the extremely restrictive nature of the offender’s bail conditions which variously included curfews and electronic monitoring. Pursuant to my discretion and taking into account the period of time on those restrictions, I propose to allow a period of 3 months to account for the quasi-custodial circumstances.
The commencement date to which the sentence will be backdated has been calculated taking into account the time in which he has been bail refused and the period of 3 months of quasi-custody.
The sentence and non-parole period will commence from 7 May 2025. He will accordingly be eligible for release to parole on 6 May 2031. The balance of term will expire on 6 May 2035.
**********
R
Haidar [2026] NSWDC 63
(2010) 79 NSWLR 1
(2022) 107 NSWLR 618
(2014) 252 CLR 601
(2012) 82 NSWLR 60
In the course of cross-examination Ms Flower accepted that in her first statement to police she did not describe a further incident of anal sex occurring after she had gone into the bathroom and sent the Snapchat video. Her evidence in the course of the cross-examination became that the events she had described “was all in one”.
However, consistent with the jury’s verdict, the Court must proceed on the basis that there were two separate acts. There is a distinct lack of clarity with respect to how long either act took place or the period of time in between.
I am not satisfied that the second act described occurred after the complainant had been to the bathroom for a second time and sent the Snapchat video. I am satisfied that it occurred shortly after what she described as occurring in relation to Count 1.
The verdict of the jury must be taken to have rejected the account given in evidence by the offender to the effect that there had been one act of penile-anal intercourse and that it was consensual. The offender’s account described the complainant inserting a sex toy into her own anus. He said that he did not want to have penile-vaginal intercourse again because there was some blood on his penis and the complainant had her period. Ms Flower could not remember whether she had her period at the time or not.
I should note in passing that there was some evidence that went to the jury with respect to the finding of a sanitary pad in the waste bin by police when they subsequently attended the hotel room.
Notwithstanding that evidence, which was capable of corroborating part of the account given by the offender, the jury clearly accepted that the anal intercourse described by the victim had occurred without consent.
The evidence by the complainant that the offender ejaculated was disputed by the offender at trial. The offence is established without a determination that ejaculation did occur. However, to the extent that the fact of ejaculation may serve to aggravate the offence, the medical evidence following examination of the complainant detected no semen or spermatozoa. I am not satisfied that this fact, namely ejaculation, is established beyond reasonable doubt.
The medical evidence also described a small linear graze at the anal verge. However, the nursing notes indicate that the complainant did not recall if the injury was present prior to the assault. Accordingly, I make no finding with respect to the causing of any physical injury.
The victim made complaint to a number of friends on the evening of 3 February 2022. She was then taken by one of her friends to police on the morning of 4 February 2022. Police subsequently attended the Mercure Hotel where various items including the wineglass and other items were taken for forensic testing. Police ultimately arrested the offender on 28 March 2023. He was released to bail at that time.
Ms Jones then described that the offender flipped her over so that her stomach was on the massage table and her face in the face hole. The offender was on top of her, with his legs on her legs, and his hands and weight on her right shoulder. She described that her face wasn’t facing the right way, and wasn’t correctly aligned to the face hole, but that because of the pressure of his body on hers she could not move. She described that as a result of the pressure on her ribs and her face being misaligned on the table, she said she had difficulty breathing. The offender then inserted his penis into her vagina. She asked him to stop and said, “It*’s hurting me, please stop”. Ms Jones evidence was that the offender said “You are very sexy, your vagina’s very nice, I’*m enjoying it” as he continued. She described that he kept saying this while she tried to get him to stop. The victim said this continued for five or six minutes before the offender withdrew his penis and flipped her body over onto her back facing upwards. This act of sexual intercourse formed the basis for Count 3.
Ms Jones described that the offender was then lying on top of her, and that he put his hands around her neck and his body weight on his hands. She described that he had his penis inside her vagina and was “going hard”. She described saying “Please stop, please stop.” The offender kept saying that he was loving it and enjoying it. Ms Jones said that she couldn’t talk anymore, she was blacking out from his hands around her neck, she couldn’t breathe and her head felt really cold. She described that “I couldn*’t see anything except for the black vision, yellow, and my dad’*s face, and I genuinely felt like I was like I was going to die.”
This conduct, namely the choking and the continuing sexual intercourse, formed the basis for Counts 4 and 5.
Ms Jones did not give any evidence concerning the acts which were particularised as Count 6. Accordingly, there was a directed verdict of Not Guilty on that Count.
Ms Jones then described the offender moving away and reaching down under the massage table to retrieve a pillow, which he then placed under her buttocks. He again inserted his penis in her vagina and continued the intercourse. The victim said that she was screaming in pain and saying “Please stop” repeatedly. She said that the accused was getting more aggressive and going faster, saying “Please*, I**’*m enjoying it.”
Ms Jones said that this continued for a few minutes, after which the offender’s penis slid out. She said that he then stood up from the table. She sat up, and the offender moved to sit, effectively behind her. The offender then laid down on the table and said he wanted her to sit on top of him. She described saying “I*’m in so much pain, I’*m not going to do it”. She recalled him begging her to sit on top of him and telling her that she was sexy, she was beautiful and she had a tight vagina. She described him sitting up and putting his hands on her hips and trying to pull her onto his penis. She said that he successfully inserted his penis at one point into her vagina but that she pulled away quickly. She described the pain as unbearable, in part due to a curve in the offender’s penis. She said that she saw flashes from the pain. This conduct formed the basis for Count 7.
The victim described feeling that she had given up, that she was frozen and lost, and just wanted to leave and end the experience. She said that the offender pulled her closer to him and pulled her head towards his penis and put his penis inside her mouth. She said that he pulled her head closer to his body very aggressively, pushing his penis very deep into her mouth. She described gagging and that she felt she was going to vomit. She said that she put her hands on his penis to block it from going all the way into her mouth. She described this as lasting for less than a minute. This conduct formed the basis for Count 8.
She described that she wanted to finish off, which I take to mean end the service by bringing him to ejaculation, so she placed her hands on his penis and began to manually masturbate him. At this stage she was sitting on the massage table between the offender’s legs, “kind of kneeling down” with the offender’s legs on her thighs. Ms Jones then described the offender pulling her closer towards him again and placing two fingers inside her vagina and rubbing it “hard”. She described already being in so much pain, feeling the skin inside and outside her vagina burning, and her stomach and back hurting.
She said that she then reached under the massage table to retrieve massage oil and she used that to lubricate her hands to bring the offender to ejaculation quicker. The offender, with one hand still touching her vagina, used his other hand to also masturbate himself until he ejaculated.
This conduct formed the basis for Count 9 on the indictment.
Ms Jones described that after the offender ejaculated, he got up off the massage table, washed in the shower again, dressed, and left. After the accused left, she went downstairs to the receptionist and had the following conversation:
The offender said that his marriage became strained approximately 5 years ago. He said that in 2019 his home life deteriorated with the onset of business and marital stressors. He described his wife experiencing menopause and increasing interpersonal tension and arguments between the two of them. Financial stressors were exacerbated when the pandemic resulted in the closure of three businesses which he had become involved in. These had included operating small manufacturing facilities and service stations. The offender reported subsequently engaging in maladaptive coping behaviours such as gambling, increased alcohol consumption, and attending commercial sex workers.
The offender reported drinking a bottle and a half of wine daily for around 3 years from 2019-2022. The offender reported previously having drunk regularly during his time in the Merchant Navy, leading to a pattern of regular drinking throughout his life. The offender said that he had significantly reduced his alcohol consumption by late 2022 as a result of improved business stability and family relations, and feeling better mentally and financially by mid-2023.
The offender has a complex medical history. The history reported to Dr Rowe was cross-referenced with medical records, which were generally accurate although there were some discrepancies with regard to dates and timeframes due to apparent cognitive difficulties. In brief overview, the offender has been pre-diabetic or diabetic since at least 2018 and takes antidiabetic medication. Such metabolic disturbances are likely to contribute to the reported symptoms of feeling generally unwell, increased fatigue, and perceived cognitive decline. The offender’s liver function tests reflected poor results from 2005-2020, with an improvement from 2020-2025 consistent with a reduction in alcohol consumption. Further liver dysfunction from December 2023 to July 2024 was recorded and is consistent with a possible relapse and an E. coli infection in June 2024. That infection triggered subsequent complications including impaired water balance regulation reportedly due to pituitary gland dysfunction, ongoing dizziness, and blood-pressure instability.
The offender’s medical history noted arthritis, hypertension, hypercholesterolaemia, postural hypertension or postural orthostatic tachycardia syndrome (POTS), erectile dysfunction, and endocrinological abnormalities. The postural hypertension or POTS involved intermittent symptoms of brief blackout episodes such as losses of awareness upon standing from late 2024, as a result of which he was monitored whilst in custody. There were records concerning cervical spine degenerative changes dating back to 2016, and more recent difficulties with knee and hip pain. Other records referred to steroidal knee injections, ongoing cervical spondylitis, and chronic neck pain.
In relation to the offender’s psychological history, the offender reported that around 2017 he began experiencing heightened worry about his memory and intermittent depressive symptoms associated with his chronic pain, reduced work capacity, and family stress. From 2019 to 2023 he reported fluctuating and situational depressed mood and anxiety. Following his arrest and incarceration in March 2024 the offender reported experiencing persistent anxiety and fear of community retaliation. He reported suicidal ideation in the early stages of the criminal proceedings. The offender’s medical history notes stress and anxiety, and corresponding prescriptions, from 2020 onwards.
Dr Rowe expressed the opinion that the offender’s contextual constellation of medical, psychological, and situational stressors, and the maladaptive coping behaviours used as a result, are clinically consistent with an Adjustment Disorder at the time of the initial offending. Although the offender’s mental state improved prior to the later offences, Dr Rowe noted that his worsening physical health problems, combined with ongoing financial and interpersonal pressures, would have contributed to psychological strain during that part of 2023.
In relation to the impact of incarceration on the offender’s mental and physical health, Dr Rowe noted that the offender’s initial two-month incarceration was profoundly distressing, resulting in fear within custody and also within the community. The offender developed symptoms of anxiety and depression, suicidal ideation, and sleep disturbance. It was noted that the E. coli infection whilst in custody had a significant impact on his physical health. Dr Rowe noted that the prolonged period on strict bail conditions from May 2024 to October 2025 contributed to his ongoing symptoms.
In relation to the current period of incarceration, the offender reported a more severe deterioration in his mental health, including severe depressive symptoms, recurrent thoughts of death or suicide, anxiety and cognitive difficulties, and a worsening emotional state. He also reported the return of orthostatic blackout episodes worsened by the limited medical oversight in custody.
Dr Rowe ultimately expressed the opinion that the offender met the diagnostic criteria for Major Depressive Disorder (MDD) with Anxious Distress as defined in the DSM-5. Pursuant to an assessment of static and dynamic risk factors, he assessed the offender as having a low risk of reoffending. It was noted that incarceration was likely to continue to have a markedly adverse impact on the offender’s mental and physical health.
In their respective letters Doctors Boyages, Yeung, Kippen, and Mahajan confirmed the physical health diagnoses and ongoing treatments referenced in Dr Rowe’s report, and noted an additional recent surgical procedure to excise a ruptured sebaceous cyst.
In his character reference, Gary Thomas, a friend and business partner of the offender, described him as dedicated, reliable, and with a strong sense of responsibility. In a personal context he described the offender as compassionate, generous, and trustworthy, having supported friends and neighbours in times of need, and indeed Mr Thomas himself during cancer treatment. He described the offending as out of character and said he was of the firm opinion that he would not reoffend.
In his reference, Nicholas Harrow, the offender’s accountant of over 35 years, described the offender as a respectful, hardworking man who conducts his affairs with utmost probity and propriety, has high moral standards, and whose honesty and integrity has never been questioned.
In his character reference Ather Habib, an employer and family friend of the offender of over 25 years, described the offender as having an honest and fair personality. Mr Habib said that in the course of employing and supervising the offender, he had never witnessed any sexual harassment complaints from female team members. He lastly noted that the offender is very sorry for his actions, and Mr Habib believed he would never reoffend.
In her character reference Huma Haidar, the offender’s wife, described him as a family-oriented man who has worked hard to provide for his wife and children throughout their marriage. She noted the psychological impact of his absence on her family. She described the offender as a compassionate, generous, and caring person, who makes charitable donations to hospitals and makes an effort to employ special-needs individuals and retirees in his businesses. She stated her belief that the offender will not reoffend, noting that she will personally support him and that he is seeing a psychologist to improve his mental state.
In relation to hardship to the offender’s family, the Crown submitted that the hardship was not exceptional, and that although it forms part of the offender’s overall subjective circumstances, it ought to be treated with caution. The defence separately conceded that hardship to family was not exceptional.
With respect to the sexual offence the offender received only a 5% discount for a late plea of Guilty, and the fact that the victim was required to give evidence and be cross-examined, which was “nothing more than an attempt to minimise the impact of his offending behaviour on her”.
At first instance, Judge English in the District Court had imposed a head sentence of 2 years and 10 months with a non-parole period of 1 year 8 months in relation to the sexual offence, taking into account the second incident on the Form 1.
With respect to the second substantive offence of reckless wounding which related to the infliction of a 15 cm laceration to the victim’s thigh as well as other cuts inflicted by the knife, after a full 25% discount for the plea of guilty her Honour imposed a head sentence of 2 years and 3 months, with a non-parole period of 1 year 10 months.
The second sentence was expressed to commence 6 months after the commencement of the sentence for the sexual offence. The nett effect of the way in which the sentences were directed to be served was that the head sentence for the separate offending relating to the reckless wounding was entirely subsumed in the head sentence for the sexual offending, and the non-parole periods were only accumulated by a period of two months. The effective sentence at first instance was 2 years and 10 months with a total non-parole period of 1 year and 10 months.
The Court of Criminal Appeal upheld a challenge to the overall manifest inadequacy in the effective sentence failing to properly reflect the totality of the criminality. Of relevant significance, the Court did not interfere with either of the head sentences with respect to the sexual offending or the reckless wounding. However, the Court achieved an increase to the effective sentence by reversing the order in which the sentences were to be served and delaying the commencement of the sentence for the sexual offending by a period of 12 months. This had the effect of increasing the effective head sentence by 12 months to 3 years and 10 months and the effective non-parole period by 7 months to 2 years and 5 months.
In Bhuiyan v R [2009] NSWCCA 221 the offender appealed against the severity of a limiting term imposed upon him pursuant to s 23(1)(b) of the then Mental Health (Criminal Procedure) Act 1990 (NSW). Following a special hearing before a judge and jury, the offender was found to have committed one offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years, and one offence of aggravated sexual intercourse without consent (fellatio) contrary to s 61J of the Crimes Act for which the maximum penalty was 20 years imprisonment with a standard non-parole period of 10 years.
The offender had been heavily intoxicated. He had approached a prostitute and negotiated a fee for her services. She then accompanied him to his home where she was paid. The offender locked the door. The victim put a condom on the offender which he removed and then insisted, despite her protests, on having unprotected penile-vaginal intercourse with her. He then produced a knife and had unprotected oral sex with her. It was accepted that the victim submitted to oral sex because she was afraid that the offender would use the knife on her. She was eventually able to escape and ran down the street naked before finding a stranger and contacting police.
The offender had a strong subjective case, having been tortured as a political prisoner in Bangladesh in the early 1990s before fleeing to Australia. He suffered from significant psychiatric illnesses including PTSD, a Psychotic Disorder which was most likely Schizophrenia, and alcohol dependence. He had a criminal history reflecting offences of larceny, break and enter, and drug possession. The offender’s mental health disorders had only been appreciated and diagnosed a few weeks prior to the commission of the offences.
The offender had been sentenced to limiting terms of 8 years for each offence, both having been assessed as falling below the mid-range of objective seriousness. Each of the limiting terms were directed to run concurrently and reflected the maximum amount of time the offender could be detained in a correctional or mental health facility for these offences, with time actually spent in custody to be determined by the Mental Health Review Tribunal.
The Court of Criminal Appeal noted that the limiting term, if passed as a sentence, would have equated to a likely non-parole period of approximately 5 years which, “notwithstanding the subjective features of the applicant, may have been considered lenient.”
The next comparative case has been selected because it involved a complainant clearly and repeatedly indicating her lack of consent.
In Brown v R [2025] NSWCCA 30 the offender appealed against his conviction and sentence for two offences of sexual intercourse without consent. The offences were each charged pursuant to s 61I of the Crimes Act, again attracting a maximum sentence of 14 years imprisonment and a standard non-parole period of 7 years.
The offender resided with a number of other persons in a house in Jindabyne. The female victim, who was a visitor, stayed at the house one night as she was planning on driving with one of the female members of the household to the Central Coast the following morning. She and three other members of the household were still up drinking at some time after midnight when the offender returned home.
The offender offered his bed for the victim to sleep in, and she accepted, going to the room by herself and getting into bed fully clothed to sleep. The offender subsequently entered the room and lay down on the bed. He then had penile vaginal intercourse with the victim without her consent. She repeatedly communicated her lack of consent, saying “No” and “Please don*’t”. She gave evidence that she said “No, I don’t want to”* and that she couldn’t say how many times she had said “No”**. The victim was pinned by her wrists to the bed during the intercourse.
Following the penile/vaginal intercourse, the victim was made to perform oral sex on the offender. She gave evidence that she did so because she was scared.
He was convicted after trial before a jury.
An appeal against his conviction for both offences was dismissed in the Court of Criminal Appeal.
The offender had poor prospects of rehabilitation, had shown no insight or remorse into his offending, and perpetrated further sexual offences subsequent to his arrest. The offender suffered from Depression and Anxiety, but there was no evidence that he was affected by those disorders at the time of the offending.
At first instance the trial judge, Pickering SC DCJ, characterised the objective seriousness of both offences as being “around the mid-range of seriousness”. Notwithstanding that assessment and the circumstance that the offender had pleaded not guilty, his Honour did not apply the standard non-parole period.
The offender was sentenced to two terms of imprisonment of 6 years with a non-parole period of 4 years to be served wholly concurrently.
The appeal against conviction was dismissed.
Although the Court of Criminal Appeal found error in the sentencing judge’s factual findings, which were based on an inaccurate statement of facts presented by the Crown, the Court held that no lesser sentence was warranted at law and dismissed the appeal.
However, before leaving Brown I am constrained to observe that both the sentencing judge and the Court of Criminal Appeal found that the offender was reckless as to whether the victim was consenting but that he did not have actual knowledge that the complainant was not consenting, notwithstanding her evidence as to what she had said.
Stern JA, with whom Bell CJ and Yehia J agreed, after noting that the Crown did not seek to disturb the sentencing judge’s finding that the offender was reckless said at [42]:
Community Correction Orders were imposed for the remaining 2 choking offences and for the remaining assault occasioning offence.
The sentencing judge had assessed the objective seriousness of each of the choking offences as falling in the “low range” or “below the mid-range”.
In the Court of Criminal Appeal N Adams J (Free JA and Sweeney J agreeing) considered how objective seriousness should be assessed for offences contrary to s 37(1A) of the Crimes Act (at [101] and following).
Her Honour made reference to discussion regarding the legislative purpose of the provision by Payne JA (with whom Rothman and Harrison JJ agreed) in GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 at [47]-[50], particularly with respect to choking, suffocation and strangulation in the context of domestic violence.
N Adams J (at [107]) identified the following factors as a non-exhaustive list of relevant factors to be considered when assessing the objective seriousness of an offence contrary to s 37(1A):
The offender pleaded Guilty and after a 25% discount, the sentencing judge imposed an aggregate sentence of 13 years imprisonment with a non-parole period of 8 years and 6 months. The indicative sentences with respect to the charges under s 61I ranged from 2 years and 6 months up to 6 years, with indicative non-parole periods ranging from 18 months up to 4 years. The intentional recording offence had an indicative sentence of 18 months.
The Court of Criminal Appeal (Kirk and Free JJA, and Rigg J) upheld the appeal and imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months. The indicative sentences with respect to penile-vagina intercourse, taking into account a second offence of inserting a dildo on a Form 1, reduced the indicative from 6 years with 4 years non-parole period at first instance to 5 years with a non-parole period of 3 years and 4 months. The other indicatives were also reductions from the indicatives at first instance.
In the course of determining the appeal, the Court made reference to a number of comparative cases which had been provided. Two of them involved sentencing for 3 or more counts contrary to s 61I: Wan v R; R v Wan [2019] NSWCCA 86; and R v Jackson [2024] NSWCCA 156. The court summarised the significance of those cases as follows:
The circumstances surrounding this particular offence, and the comparatively moderate level of violence would place an assessment of the objective seriousness as falling below the mid-range.
Counts 4 and 5 then occurred when Ms Jones was flipped over onto her back and choked while a further act of penile/vaginal intercourse continued. She described almost blacking out, seeing yellow and black, seeing her late father’s face, and thinking she was going to die. She described screaming. She did not recall how long this continued.
These offences, following the earlier non-consensual intercourse, and occurring concurrently, place the objective seriousness of each of the offences in the mid-range.
Count 7 relates to the offender pulling Ms Jones by the waist to sit on his penis. Ms Jones described his penis only briefly entering her vagina before she moved away due to the extreme pain. This specific incident falls below the mid-range of objective seriousness.
Count 8 relates to the offender forcefully pushing Ms Jones’s face towards his penis, causing her to gag and place her hands on his penis to keep it from penetrating so deeply. Viewed individually, this matter also falls below the mid-range of objective seriousness.
Count 9 relates to the offender inserting two fingers into Ms Jones’s vagina while she manually masturbated him to ejaculation. She described this as extremely painful. Similarly to counts 7 and 8, this offending falls below the mid-range of objective seriousness.
Whilst I have assessed the objective seriousness of the individual criminal acts, it is to be borne in mind that the offending against this particular victim was essentially an ongoing course of conduct during the one occasion. Consideration of the principle of totality must ultimately lead to a substantial degree of concurrency in the appropriate sentences relating to Ms Jones.
As sex workers, the two victims in this matter can be classified as vulnerable persons by reason of their employment, akin to the statutory examples of taxi drivers, bank tellers, and service station attendants under s 21A. Sex workers “perform services that by their nature give rise to a degree of defencelessness and vulnerability”: R v Robert John Hall [2017] NSWDC 240 at [34] (see also R v Dixon (a pseudonym) [2025] NSWDC 408 at [13]). Their occupation as sex workers does not in any way reduce the psychological repercussions they will have experienced as a result of these offences: R v Leary (CCA(NSW), 8 October 1993, unreported).
That vulnerability was clearly recognised by the proprietors of “The House of the Rising Sun*”* given the use of aliases by employees and the presence of duress buttons on the landlines in each room, which unfortunately did not assist Ms Jones in this instance.
The vulnerability of each of the victims aggravates the offences to some degree.
I have earlier referred to and summarised each of the respective Victim Impact Statements. There is no doubt that all victims of sexual assault suffer varying degrees of emotional and psychological harm, and in some cases, physical harm. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) refers to an aggravating factor where the injury or emotional harm is substantial. In order to be substantial, the harm must be established beyond reasonable doubt to be greater or more deleterious than might ordinarily be expected for the specific offence: see R v Youkhana [2004] NSWCCA 412 at [26]; R v Tuala [2015] NSWCCA 8 at [64]. I note that the weight to be given to Victim Impact Statements is to be tempered by the fact that they are not on oath and not subject to cross-examination (in this regard, see the analysis of Simpson J in R v Tuala).
In the present matter, without in any way seeking to diminish the mental and psychological effect upon each of the respective victims as a consequence of the criminal conduct of the offender, I am not satisfied to the requisite standard that they rise above what the courts would observe to be ordinarily expected from offences of this kind.
I note the offending against Ms Jones has a factor of aggravation in that it was committed whilst the offender was on bail for the same type of offending in relation to Ms Flower.
In relation to remorse, it is conceded that the offender has not shown remorse and that he continues to deny responsibility for the offending. The absence of remorse bears on the concomitant factors of rehabilitation and the likelihood of re-offending. It also excludes him from participation in a number of programs in custody that would positively contribute to his prospects for rehabilitation.
Rehabilitation and prospects of re-offending are distinct but closely related concepts in sentencing. Rehabilitation is broader, seeking to address underlying issues that lead to re-offending. The goals of rehabilitation were articulated in R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [124] as follows:
Dr Rowe’s report suggests a low likelihood of reoffending on the basis of several factors including the offender’s age and poor physical and mental health. I am mindful that these factors were present at the time of the offences, and did not preclude him from committing them. However, I accept Dr Rowe’s opinion that the offender’s health is deteriorating and will likely continue to deteriorate, reducing his capacity to engage in behaviour resembling the illegal conduct in this matter. In the circumstances, I accept that the offender has a low risk of reoffending.
The offender’s deteriorating physical health will make his time in custody more onerous, which is a relevant consideration in the imposition of sentence. That said, I note the Crown’s submission that there is no evidence before me that correctional services have failed to provide appropriate care and treatment to the offender during his time in custody, and remind myself that courts must not interfere with that responsibility: R v Achurch [2011] NSWCCA 186 at [135]. I am ultimately of the view that the offender’s deteriorating physical and mental health condition warrants a moderate downward effect on an otherwise appropriate sentence.
Dr Rowe’s report identified that the offender had a number of mental health issues, which contributed to the offending: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Without reciting the detail contained in his report, it is appropriate, in light of the professional opinion that the Adjustment Disorder contributed to the offending, that there should be a reduction, to some extent, in the offender’s moral culpability. The presence of mental health conditions may mean that an offender is an inappropriate vehicle for general deterrence. However, any reduction in the importance of general deterrence, must be tempered in circumstances where the offending conduct occurred against a vulnerable class of persons, namely sex workers, who are frequent victims of similar and worse offences, often committed by individuals who engage their services as a maladaptive coping mechanism for their underlying issues.
Notwithstanding my finding that the offender has guarded prospects of rehabilitation, in circumstances of his being assessed as a low risk of re-offending, specific deterrence requires slightly less weight than might otherwise be warranted.
With respect to a diminution in his suitability as an appropriate vehicle for general deterrence, the downward effect of that determination in all of the circumstances is only moderate.
I am required to impose a sentence that is required in all of the circumstances and ensures adequate punishment and accountability for the offences. The Crown has submitted, and the defence conceded, that the s 5 threshold in this matter has been crossed. I am satisfied that no penalty other than imprisonment is appropriate.