R v SALEH

Identification of Persons in Judgment

1. The 2nd, 3rd, 4th, 5th, 8th, 11th and 12th counts are prescribed sexual offences. Because of the self-executing prohibitions on the publication of matters identifying both a complainant in proceedings in respect of a prescribed sexual offence, and a child mentioned in those proceedings1, I will not identify the victim or her son in this judgment.

Fact Finding

1. The matters of fact which I will now set out are those facts adduced during the trial, as well as the conclusions I have drawn from those established facts. Any facts and conclusions that are adverse to the offender, have been proved beyond reasonable doubt.
2. The victim was born in Australia. Her parents were from a Middle Eastern country. In 2008, at the age of 19 years, she married a man born in Saudi Arabia. The victim said of that marriage (at TT [1] 178): "I was young and it was an arranged marriage by family so, I had no say in it." The victim explained (at TT 247) that this arranged marriage was in the form of a contract "facilitated by a Muslim clerk."
3. In 2009, the victim and her now ex-husband married in Australia and according to Australian law. The child of their marriage was born a few years later. By May 2016, the marriage was effectively over. The victim and her husband were sleeping in separate bedrooms. He spent considerable time away from the home with work and/or study commitments.
4. The victim met the offender when she was taking her son to get his hair cut at the offender's barbershop. Her evidence was that they started exchanging messages on the social media platform "Instagram" after he had put a photo of her son on his barbershop's Instagram page. By the Spring of 2016, he and the victim had interacted socially on a number of occasions, during which the offender insisted that the victim should dress in a certain way at certain times, that included not wearing a head scarf (hijab) as she typically did outside her home. By about then, the offender had prevailed upon the victim to give him the necessary password and/or other details to enable him to track her physical location by monitoring the location of her mobile phone. As the victim and her husband shared mobile phone details, the offender was also able to track the physical location of the husband of the victim.
5. To put all of the offender's crimes in context, it is necessary to address the facts concerning the related offence that is sequence 27.

Related offence Sequence 27

1. For more than four years, between 1 August 2016 and 15 December 2020, the offender regularly threatened to distribute intimate photos and videos of the victim to her family and ex-husband as a means of controlling her. This continued right up until the date of his arrest.
2. The offender constantly sent messages saying that he had contacted her ex-husband. The victim testified that the offender sent her screenshots of him making phone calls to her ex-husband. The offender told her that he has mentioned things to her ex-husband, and that he was going to meet her ex-husband to tell him everything and to give him everything for her ex-husband to remove her son.
3. In early 2017, the victim and her husband were still living together. Her husband doing so at least part‑time. Otherwise, they were attending to the formalities of divorce under Australian law, which eventually occurred in 2018.
4. The victim recounted that on one occasion, the offender was tracking her physical location by monitoring the location of her mobile phone. The offender drove into her garage. He made a video recording of the contents of the garage and sent it to the victim, adding that her husband's car was not there and accusing her of having another man in the house. This was the lead up to the incident giving rise to the 2nd count on the indictment; a sexual assault that occurred in the victim's home in early 2017.

The 2nd count on the indictment

1. The victim permitted the offender's entry into her home. Once inside, the offender sexually assaulted her. He pulled his pants down and pulled her head onto his penis and forced her to perform oral sex on him. Significantly, the offender used his mobile phone to photograph at least part of that sexual assault. Realising that, the victim tried to cover her face and the offender said, "Why are you covering your face for? I've already got so many photos and videos of you."
2. By early 2017, I find beyond reasonable doubt that the victim was in a vicious circle. She did not want to see the offender. She saw him to placate him. However, the more times she saw him, the more material the offender gathered, to use against her in his ongoing threats to share the photos and videos he had of her, with her husband and family. At least sometimes, those verbal threats were accompanied by physical assault.
3. The following four answers by the victim, during her evidence-in-chief (TT87-88) explained the victim's predicament: Q. When you say he'd force you to take your headscarf off, what do you mean by that? A. He'd tell me that I'd have to take my headscarf off whenever I'd go with him to these places. Q. What does that mean to you being out without your headscarf? A. [ … ] in my religion, once I have put this on, I'm not permitted to take it off again. And the fact, the fact that I'm going out to public places without it on, it's something that my family wouldn't approve of and it's something that my ex‑husband wouldn't have approved of. And he would use that to show that I'm not the right person, like you know looking after my son. Q. When you say, "he would use that", are you referring to Mr Saleh? A. He was, he was using that to intimidate me to like force me to take it off to have photos of me without it on to show my ex‑husband, in order to show my ex‑husband I'm not the right person to be looking after his son.
4. Elsewhere in her testimony (at TT73-74), the victim explained the situation that she considered herself to be in and why she did not complain about being sexually assaulted by the offender. She told the jury, "Even though my ex-husband and I were separated, … we were still married, so that's something that I would get punished for". When asked "When you say that's something you would get punished for, what do you mean by that?". The victim answered that Islamically that's still an act of adultery even if you are not consenting. The victim also testified that that she believed she had no option other than to continue to see the offender, as he demanded.
5. The victim was cross-examined (at TT247-248) as to why it was that she continued to interact with the offender: Q. When you said, "I had no option", what exactly did you mean by that? A. He would tell me that if I didn't go to see him, he'll tell my ex-husband. He would constantly threaten me with my ex-husband. Q. How is that a threat, [ … ]? Tell your ex-husband that he had sex with you? A. Yes. Q. In a situation where your marriage was ending or had ended? A. Again, I was not officially divorced. Q. Well how is that a threat to you exactly? A. Because I'm not allowed to have - or have any sexual relationships outside of the marriage. Q. Islamically that's your belief; correct? A. No, that is, no, Islamically that is correct.
6. And at TT257: Q. Well what were these threats that you keep talking about in your evidence? A. The threats that my son would grow up without a mother. Q. Why would your son grow up without a mother? A. Because I'd either be killed or he'd be taken away from me. Q. Taken away from you by whom? A. By my ex-husband Q. Why, why would you think that? A. Because I had sexual intercourse outside of marriage while I was still married to him.
7. Asked (at TT257) about her ex-husband's interactions with other women, the victim told the jury that, "women and men are treated differently." Asked to clarify that statement by the Court (at TT258), the victim said, " … what I'm saying is not with Australian law. I know with Australian law men and women are treated equally, they're equal. But just so many times I would disclose things to my ex-husband that you're not allowed to that while you're married, and he would constantly say to me, 'It's different, I'm a man, you're a woman'. So, he would justify for himself to do actions like that but it wasn't, it wasn't excusable for myself."
8. One does not need to resolve questions about the meaning of passages within the texts of a religion, to understand that the victim's genuinely held beliefs, included adverse consequences for her and her son, if she breached certain morality rules about how she was expected to behave, in the eyes of her family, ex-husband and others.
9. Nor does one need to resolve such questions, to determine the motive of the offender in conducting himself in the way described by the victim. It is an irresistible inference that the offender used violence and intimidation, including frequent death threats, as techniques of coercive control, to exert power over, and instil powerlessness in, the victim. Measures that were designed to facilitate the offender's ongoing sexual abuse of the victim.

Related offence Sequence 10

1. Sequence 10, is the assault occasioning actual bodily harm to the victim, in her home, on or about 11 September 2018. An offence that consisted of the offender burning the front of the victim's abdomen with a hot iron.
2. Not for the first time, the offender entered the victim's home and accused her of having been with another man. The victim was at the time ironing clothes or other items. She told the offender to step away as she tried to get away from him. She moved around the ironing board as the offender threatened to put the hot iron on her face, so that no other man would look at her again. Then the offender pushed the ironing board and the iron fell and burnt the victim.

Related offence Sequence 26

1. Sequence 26, is the demanding of money with menaces from the victim, from June 2018 until July 2019.
2. The offender obtained a total of $100,000 from the victim, primarily by threatening to kill her and telling her that her life was in his hands. The transactions included $60,000 on 19 June 2018 (B3), $15,000 on 1 August 2018 (B4), and $25,000 on 4 June 2019 (B16). There was no dispute at trial that the victim had paid this money to the offender.
3. The gravity of this offence is illustrated by the victim's testimony (at TT103) concerning the $25,000 obtained from the victim on 4 June 2019: "That was when Ahmed's [barber] shop was closing because he hadn't paid the rent, and he forced me again to give him that money. And I took that money from my family, from my mum. My mum collected some money off my brothers. Again, I told her it was something that I'd invest for her and till now I'm paying her back. [ … ] He threatened me, he blackmailed me. He told me that my life's in his hands. He'd always use words to that context. He'd tell me that if I didn't organise this amount that would be the last day for me to live. He'd say words to that effect. So I had no other option. He'd blackmail me with the photos and the videos. He'd constantly tell me that my son would get taken away from me."

The 3rd Count on the Indictment

1. The 3rd count on the indictment is the aggravated sexual assault that occurred on or about 16 May 2019, at the home of the offender.
2. The offender grabbed the victim by her hair. He smashed her head multiple times into the tiles that were either on a wall or the floor. He also punched her. He armed himself with an electrical extension cord, and hit the victim with the cord, to her body, over ten times. The victim tried in vain to shield herself from the offender's assault.
3. The offender demanded that the victim remove her clothes. She refused, so he forcibly removed her now blood-stained clothes. The offender extracted another false confession from the victim to the effect that she had been in an intimate affair with another man, a friend of his, named 'Saif'. Then the offender anally raped the victim. He callously videoed himself inserting his penis into her anus. As was his practice when raping the victim, he was not wearing a condom. The victim was in great pain. The offender ignored her plea to stop, and he continued anally raping the victim until he ejaculated inside her.
4. The offender told her to leave his home naked. As she was trying to pick up her clothes, the offender told her to get dressed. She did so and then the offender took her to her home where she changed out of her bloodied clothes. Then he took her to a police station to lodge a false complaint about his friend Saif. She then went home.
5. Just after midnight, the victim telephoned the triple zero emergency number. As a result of that call, she was taken to hospital by ambulance where she was treated for concussion. By once again tracking the location of her mobile phone, the offender was able to locate the victim at the hospital. He went there and filmed her in a hospital bed at 4am. He also told the victim that he would kill her if she told anyone that he had assaulted her.
6. During her evidence, the victim was shown the photo of her face depicted on page 15 of exhibit B. She told the jury that photo was taken, "a few days after the incident." Asked about the apparent darkness around both of her eyes and across the bridge of her nose, the victim explained (at TT 103), "those are bruises and there's swelling on my forehead. It's not very obvious in that photo, but it's there. That was from the punches that he did to me, and I did until now suffer a deviated septum from that injury. [ … ] the right side of my nose was kind of broken. I'm having breathing difficulty till now because of that injury.

Related offence Sequence 13

1. Sequence 13, is the assault occasioning actual bodily harm in the victim's home, on or about 4 December 2019. The offender committed that offence by punching the face of the victim and burning her thumb with hot milk.
2. The victim told the jury (at TT104): "I was in the kitchen making things for my work Christmas party and again Ahmed came in, he comes in whenever he wants, since he has the key. He doesn't ask me to come in, he just comes forcefully against my will. He came in and he started accusing me of having someone at home. And at the time I was at the stove and again he pushed me and made sure that I dropped something on my hand and I burnt it." "I told him to step back and he kept pushing, pushing, even though he saw I had the boiling milk in my hand, and he poured it onto me."
3. A friend and work colleague of the victim testified that she recalled the victim having two black eyes at the work Christmas party in 2019. The burnt thumb required the victim to attend a hospital for treatment of it on 10 December 2019.

The 4th and 5th Counts on the Indictment

1. The 4th and 5th counts on the indictment are the aggravated sexual assaults that occurred on or about 12 January 2020, in the home of the victim.
2. The victim woke up in the middle of the night to find the offender in her bedroom. He took her into another room where he punched her hard and multiple times to her face. He then pulled down her pyjama pants and raped her, vaginally then anally. The offender ignored the multiple requests of the crying victim to stop his raping of her.
3. The victim told the jury (at TT 134): "I remember I cried to him and I told him that I didn't want this and I told him to stop, multiple times, but he would continue. And he just continued to threaten me during that time."

The 6th, 7th and 8th Counts on the Indictment

1. The 6th, 7th and 8th counts on the indictment were committed on or about 10 April 2020 in the home of the offender. The offender had prepared a bath. When the victim declined the offender's demand that she get into the bath, he hit her and she started crying. That was the assault that is the 6th count. Thereafter she entered the bath, and the offender again assaulted her by dangling an extension lead connected to a source of electricity over the bathtub containing water, in which she was now sitting. That was the assault that is the 7th count. The offender then committed the 8th count. The offender pulled the victim out of the bathtub and took her to his bedroom where he anally raped her. He pulled her by the hair as she was crying. She told him to stop. In her evidence, the victim said (at TT113), "I remember telling him to stop multiple times and I told him to let me go home but he continued". The offender inserted his penis into her anus and ejaculated. He was not wearing a condom.

The 9th count on the indictment

1. The 9th count on the indictment is the assault that occasioned actual bodily harm to the victim that occurred on or about 9 July 2020, at her home. The offender went there with an extension lead and a knife in a plastic bag. Once inside her home, he took the victim to a room and hit her multiple times with the extension cord and cut her shoulder with the knife. When the victim was on the floor trying to put the knife under the bed, the offender jumped on her back. He also threw a paper shredder at her. Of this assault, the victim said (at TT 116) that she couldn't even scream from the pain she was in because she was too scared that her son would wake and see something like that.
2. After the offender departed her home, she and her son slept the night in the bathroom. Her stated reason for doing so was that the bathroom was the only room in the house that had a lock on it, and she was scared that the offender was going to return and harm her and her infant son.

The 10th count on the indictment

1. The 10th count on the indictment occurred on or about 5 August 2020. It is an assault that occasioned actual bodily harm to the victim.. I am unable, in light of the evidence, to be satisfied beyond reasonable doubt, that this assault occurred in the victim's home.
2. The offender punched the victim multiple times in the face and hit her with an electrical extension cord. The punches caused black eyes and a bruised face. The extension cord caused whip-like marks on her body. Photos of those injuries are depicted in the photos on pages 26-34 of trial Exhibit B. After the victim photographed her injuries on the morning of 6 August 2020, she sent the photos to the offender's brother, who forwarded them to the offender (Ex G).
3. The offender's response was a damning admission: "Don't worry about her, I've been for years like that with her" "She's used to it" & "Let her fuck and get killed"

The 11th and 12th Counts on the Indictment

1. The offender committed the 11th and 12th counts on the indictment on the same night, between 8 and 30 August 2020.
2. On that night, the offender went to the home of the victim, once again, he was equipped with an electrical extension cord and a knife in a plastic bag. The victim testified (at TT127) that, "this time it wasn't the serrated knife. It was a black handled straight knife. A larger one than the serrated one." She said that the knife was probably about 3 to 4 centimetres in width and maybe about 15 to 20 centimetres in length.
3. After he entered her apartment, the offender took her into a bedroom. The offender punched the victim "multiple times" with his fists and hit her with the extension cord. At one point he also ripped out pieces of the victim's hair. When asked, how many times did the offender punch her, the victim answered, that he hit her multiple times to the point where she could no longer properly see. Instead, she saw stars or just black and white. (TT127) The offender interrogated the distressed victim and extracted a false confession from her to the effect that she had sexual intercourse with another man. The victim was.
4. The offender then sexually assaulted the victim by pulling down her pants and forcing his penis into her vagina (Count 11) and then into her anus until he ejaculated (Count 12). The offender did not wear a condom.
5. Referring to the 11th and 12th counts, the victim testified, "I told him to stop. I said, "No". I always said no to him every single time he tried to do something with me and then he'd accuse me, "Why, did someone else sleep with you and you don't want me to find out? Are you keeping yourself for someone else?"
6. I am satisfied beyond reasonable doubt, the offender knew full well the victim was not consenting to each of the 2nd, 3rd, 4th, 5th, 8th, 11th & 12th counts.

The 13th count on the indictment

1. By early September 2020, the offender had installed Closed Circuit Television cameras into the victim's apartment while she was at work, so as to further monitor her movements and generally intimidate her.
2. On or about 13 September 2020, the offender committed the assault that occasioned actual bodily harm to the victim, pleaded in count 13, at the home of the victim. The moments before the assault were at least partially captured by CCTV. The victim and her young son were laying on the lounge. The victim quickly stood up and closely embraced her son, who I infer was present not far from where the offender punched the victim's face causing the bruising and swelling depicted in the photograph on page 43 of trial Exhibit B.
3. The brother of the victim commenced living at her home from the middle of September in the year 2020 (TT 141). Thereafter, the offender ceased entering the victim's home when her brother was there (TT 142).

The 14th Count on the Indictment

1. During her evidence at trial, the victim was shown the photographs on pages 45 and 46 of trial Exhibit B. Those photographs depict two or three welts on her outer upper left arm. Those photos were part of the evidence, adduced to prove the 14th count on the indictment: an assault occasioning actual bodily harm that occurred in the offender's home, on or about 30 October 2020.
2. The victim was asked (at TT142), "what happened that caused you to take these photographs?" She answered, "I had gone to Ahmed's house during that time when my brother was here, and those marks are from the extension cord." When the next question, which was, "what happened with the extension cord?" was asked, the visibly upset victim sought and was given, a short break. When her evidence resumed, the victim said that she was hit with the extension cord about ten times, to her arms, back, and legs. This vicious assault came to an end when the victim convinced the offender her brother was waiting outside.
3. A few days after committing the 14th count, the offender sent the victim a video of a hand holding a meat cleaver in front of a bed, a still photo from which is depicted in the photograph on page 47 of trial Exhibit B.
4. The video was located by police on the offender's phone. It had been recorded on 4 November 2020. The victim told the jury that whilst she recalled receiving the video around the time of the assault that is the 14th count on the indictment, she had not actually seen the meat cleaver. She said (TT146): "I haven't seen it real life but he constantly told me that he has that knife and would cut my skull in half, that he can chop me up into pieces and no-one will be able to find the remains of my body."

The 15th Count on the Indictment

1. On or about 30 November 2020, the offender told the victim that, if she did not go to his house, he would come to her work and "beat" her in front of her colleagues. The victim negotiated with the offender, such that she attended his home after work, with her son and brother waiting in her car.
2. When the victim entered the offender's apartment, the offender recorded himself interrogating her about who had been in her house the previous day. Still images and exchanged words are depicted on pp50-52 of trial Exhibit B. Although no one had actually been in her house, the victim gave the offender the name "Dex", in an attempt to placate him. The victim explained the context in which this interrogation by the offender occurred. She told the jury, at TT147: "Ahmed made a few dating - dating apps or websites. He joined on to some websites and was impersonating being me. He was using my photos on that profile and sometimes he would send me screenshots of people that he been chatting to, to try and make me sleep with them in front of him or for me to sleep with them with him and I remembered that name, so I just told him it was Dex."
3. The assault occasioning actual bodily harm that then ensued is Count 15 on the indictment. The offender threw a tower fan at the victim. He punched her and hit her with an extension cord, causing bruising to her left rear shoulder. He also applied pressure to her neck in a choking-type action whilst pressing her against a wardrobe. As he did that the desperate victim banged on the wardrobe's sliding door, hoping that she would be seen or heard. She escaped by telling the offender that her brother was waiting outside.
4. When the victim got home, she got into the shower to ease her pain. She told the jury (at TT 149): "I remember going home that time and I was trying to go into the shower to put some cold water over my body because I was in so much pain and I became really lightheaded and I fell in the bathroom on the floor and at that time my brother found me on the floor in the bathroom and when he saw the marks on my face he assumed that those marks were because I fell in the bathroom."
5. The photographs of the victim on pp53-58 of Exhibit B depict bruising to her face, neck and left rear shoulder and illustrate in part, the gravity of the offender's conduct. The ferocity of this assault is otherwise demonstrated by the fact that the offender hit the victim's head so hard that he broke his hand.
6. Later that same night, the offender sent the victim a message via the Snapchat messaging application. When translated from Arabic to English that message read, as depicted on page 52 of trial Exhibit B, "When I do my operation and recover, I swear by my beloved mother I will break your two arms just like what happened to me so you forsake getting fucked daily, you filth"

Related offence Sequence 28

1. Sequence 28 is the related offence of intimidating the victim on or about 7 December 2020.
2. On that day, the offender sent the victim threats via SnapChat including the following (pages 59-61 of Exhibit B): A photo of a boxing glove, taken in the fire escape of the victim's apartment building with the caption, "I'm sitting on the stairs and I'll fix you bitch"; A photo of a hand holding an extension cord and the words, "I left it with me in the car to whip you with it"; and The words, "You can't escape from me."
3. That night, the offender continued to threaten to kill the victim and told her that he was going to get a gun and kill her. The next day (8 December), the victim was so stressed by the offender's threats that she collapsed at work. The victim told the jury (at TT150): " … the whole time I was at work he was messaging me non-stop. He was threatening me that he's going to kill me and then I switched off my location. … I remember becoming really, really lightheaded. I was having really bad chest pain, and I just collapsed at work … the medical emergency team … came in and my heart rate was extremely high. […] I was having severe chest pain. I was having severe palpitations, so my doctor at the time organised for me to have a heart monitor on, so when I went to the emergency department again and he found me … He came to me, he deleted all the photos and all the messages that I had screenshotted that said that he had the gun. I had screenshotted the messages and sent them to his brother so I can get him off my back. He was threatening that if I didn't buy him a watch … that day that was worth $7,000, that he was going to send everything to my ex-husband and my family."
4. While in the emergency department, the offender attended her bed, filmed her (p62 of ExB), and threatened her again before deleting the messages he had sent to her.
5. I find that the offender's violence during the commission of each of the 2nd through to the 15th counts, and related offence sequences 27 and 28 was used by him to secure the silence of the victim.

The 16th count on the indictment

1. Between 12 and 15 December 2020, the offender was constantly sending her messages that said that he (the offender) had contacted her ex-husband. The offender told her that victim testified that he would send me screenshots of him making the phone calls to my ex-husband.
2. The brother of the victim told the jury that the mobile phone text messages in Exhibit K were sent to him by the offender on 14-15 December 2020. Those messages included: "Blood test for your sister to find out how many guys she slept with. I'm gonna ask Doctor Omar to do the DNA. When I finish with the police, I'll give him a call." "DNA has to be from behind from her mouth because your sister loves sucking and she loves oral. I'll also call your uncle Moustafa and Doctor Omar."
3. On 15 December 2020, the offender told the victim that if she did not go to him within the next few minutes, that he had her ex-husband's number on speed dial and that he was going to call him. That prompted the victim to say to her brother, as she told the jury, "It's my only chance to make sure he stops, I'm going to go see what he wants and hopefully put a stop to all of this."
4. The victim further testified, "I had already put all my clothes, all my son's stuff, I had put everything in rubbish bags and donated them to charity. I had gotten rid of everything at home, I was going there to tell him that I'm leaving Sydney, he's not going to see me again. I just wanted to get out of here as soon as I can."
5. The victim went to the offender's home. Once inside, the offender threatened to kill her. He grabbed at her and threatened her with a knife. Soon thereafter, her brother intervened, and the offender was arrested.

Objective Seriousness

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 states that in determining the appropriate sentence for an offence, the court is to take into various aggravating and mitigating factors, that are relevant and known to the court, as well as any other objective or subjective factor that affects the relative seriousness of the offence. The objective seriousness of each of the offender's crimes will be assessed wholly by reference to the nature of the offending and without reference to matters personal to him. I will address the subjective factors that affect the relative seriousness of the offence and the moral culpability of the offender after considering the matters personal to the offender.
2. The matters referred to in section 21A are in addition to any other matters that are required or permitted to be taken into account under any Act or rule of law. With these matters in mind, turn to consider the objective seriousness of each of the offender's crimes.
3. The commission of an offence in the home of the victim is an applicable aggravating factor [2] , that is not limited to circumstances where the offender was an intruder. [3]
4. An offence is aggravated if a weapon was used or threatened to be used, during its commission: sub-section 21A(2)(c) of the Crimes (Sentencing Procedure) Act. The offender used or threatened to use a weapon when committing the 3rd, 9th, 10th, 11th, 12th, 14th, 15th and 16th counts.
5. An offence is aggravated if it was committed in the presence of a child under 18 years of age: sub-section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. The young son of the victim was present when the offender committed the 13th count.
6. Planning is not an inherent characteristic of any of the offences for which the offender is to be sentenced. An offence is aggravated if it was part of a planned criminal activity. [4] On the other hand, an offence is mitigated if it was not part of a planned or organised criminal activity. [5]
7. I find that the 9th, 11th and 12th counts were part of a planned criminal activity by the offender, in the sense they were each premeditated. I am not satisfied, on the balance of probabilities, that any of the other counts were not planned or premeditated.
8. If the "injury, emotional harm, loss or damage caused by an offence is substantial" that factor aggravates the commission of an offence. [6] On the other hand, if the injury or harm is not substantial the offence is mitigated. [7] I am not satisfied, on the balance of probabilities, that the injury or emotional harm caused by any of the offences was not substantial.
9. I am satisfied though that the course of criminal conduct engaged by the offender has left the victim with substantial injuries and emotional harm. I will say of this later.

Personal Violence Offences

1. Counts 6, 7, 9, 10, 13, 14, 15 & 16 are each personal violence offences [8] and as such are viewed very seriously by the courts, notwithstanding that they cover a wide spectrum of behaviour and consequences.
2. Counts 6, 7 & 16 are common assault offences and as such, do not involve actual bodily harm, and therefore are not mitigated by virtue of the fact the injuries suffered by the victim were minor.
3. I am not satisfied beyond reasonable doubt that the assault that is the subject of count 6 consisted of more than a single punch to the head. The degree of violence used was in my view minimal. Count 7 followed the commission of count 6. That offence is aggravated by the offender's threatened use of a weapon, in the form of an extension lead connected to a source of electricity, to electrocute the victim. The offender's threatened use of a weapon aggravates the objective seriousness of count 16.
4. Counts 9, 10, 13, 14, 15 are offences of assault occasioning actual bodily harm. The extent and nature of the injuries and the degree of violence are additional matters relevant to assessing their objective gravity.
5. The 9th count occurred at the home of the victim. The offender went to the victim's home equipped with an extension lead and a knife contained within an apparently innocuous plastic bag. I conclude from that fact that the offender planned the ferocious attack that occurred. The offender punched the victim and pulled her hair. He hit her with the extension lead. He threw a paper shredder at her. He also struck her with the knife he brought to her house.
6. The 10th count is an assault that occasioned actual bodily harm to the victim. It too was a ferocious attack aggravated by the offender whipping the victim with an extension cord. The offender punched the victim multiple times and hit her multiple times with the extension cord. The victim sustained broken blood vessels in her eyes, lots of bruising, and whip marks on her body.
7. The 13th count occurred at the home of the victim and in the presence of her young son. The offender punched the face of the victim. She resorted to using a frozen packet of probably vegetables retrieved from her refrigerator, to address the apparent swelling or bruising.
8. The offender committed the assault occasioning actual bodily harm offences charged in the 14th & 15th counts, using an electrical extension cord to hit the victim. Both offences were ferocious attacks that left the victim with apparent signs of injury.
9. All of the assaults in which the offender whipped the victim with an electrical cord, were intentionally painful.

The Standard Non-Parole Offences of Sexual Assault & Aggravated Sexual Assault

1. Counts 2 & 8 are offences of sexual assault (contrary to section 61I of the Crimes Act). Counts 3, 4, 5, 11, & 12 are offences of aggravated sexual assault (contrary to section 61J of the Crimes Act).
2. Sexual intercourse without consent is always a serious offence, particularly when the offending occurs in the victim's own home and the use or threatened use of a weapon is used to instil terror in the victim. Part of the assessment of the objective seriousness of these sexual assault offences involves taking into account the nature of the sexual act. The inclusion of several categories of sexual penetration within the offences of sexual assault does not mean each category of sexual penetration is as heinous as another. [9] While there is no hierarchy of sexual acts that in the offences of sexual assault, it is generally accepted that some forms of sexual activity may be regarded as more serious than others. A consideration that is necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending. [10]
3. The sexual assault that is the 2nd count occurred in the home of the victim. The act of sexual penetration was fellatio. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the midpoint of objective seriousness. [11] As Simpson J said in R v AJP (2004) 150 A Crim R 575 at [24], "[t]here are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio".
4. In R v Russell (unrep, 21 June 1996, NSWCCA) the aggravated sexual assault involved penile/anal intercourse. Justice Dunford (with whom Gleeson CJ and Studdert J agreed) said: "The nature of the offences is further aggravated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstance is of its nature always degrading."
5. The 3rd, 5th, 8th and 12th counts each involved non-consensual penile/anal intercourse. In each case, I find that the degrading nature of the anal intercourse aggravated the commission of those offences.
6. The aggravated sexual assault that is 3rd count on the indictment involved the use of a weapon, namely an electrical extension cord, that the offender used to repeatedly whip the victim. The act of sexual penetration was penile/anal intercourse.
7. The 4th and 5th counts on the indictment are each offences of aggravated sexual assault. They too occurred in the home of the victim. The acts of sexual penetration were respectively penile/vaginal and penile/anal intercourse.
8. The 11th and 12th counts on the indictment are also offences of aggravated sexual assault. The offender went to the home of the victim SS, equipped with an extension cord and a knife in a plastic bag.
9. The objective seriousness of the 11th count is of a very high order. It was a premeditated crime of sexual violence in the home of a victim of ongoing domestic violence by the offender. This crime was further aggravated in its commission by the offender's: use of a weapon; non-use of a condom and actual knowledge of a lack of consent.
10. The objective seriousness of the 12th count is also of a very high order. As well as featuring the same aggravating features of the 11th count, this crime was worse because it was the penetration of the anus of the victim followed by the offender ejaculating inside her. I will say more about the 12th count in due course.

The Notion of Moral Culpability

1. An offender's moral culpability (and a court's assessment of it) is a sentencing consideration separate from the objective seriousness of the crime. [12] In the context of the consideration of a standard non-parole in sentencing, that is reflected in the latter part of sub-s.54B(2) of the Crimes (Sentencing Procedure) Act. It is an acknowledgment that other sometimes quite powerful sentencing factors, can impact upon the sentence reached by the court.

The Offender's Subjective case

1. I therefore now turn to consider the offender's subjective case.

Pre-sentence custody

1. The offender was arrested and charged with the offences for which he was presented for trial on 15 December 2020. He was remanded in custody until 6 July 2011 when he was admitted to bail by order of the Supreme Court. On 17 December 2021, the offender's bail was revoked following his commission of stalking another woman earlier in December 2021.
2. Six months and 24 days before 17 December 2021 is 24 May 2021. Accordingly, the sentence of imprisonment that the Court will impose shall be backdated to 24 May 2021.

Personal History of the Offender

1. The offender was born in 1982 and is now 41 years of age. He was during the period of the offending for which he is to be sentenced, aged 34 or 35 years. I note that before August 2016 he had led a crime-free life.
2. The following personal history of the offender is taken from what he told Mr John Machlin, Clinical Psychologist. The offender was raised in southern Iraq, the third of four children the family. He described the family atmosphere as happy and harmonious. His father was an engineer who came from an agricultural background. His mother was a school teacher who came from a more affluent family who instilled values of courtesy and respect. He said he was an above average student at school. He denied any academic, social or behavioural problems. Mr Saleh related that he worked at a barbershop after school, commencing his apprenticeship from as young as 11 or 12 which was not unusual in his society. He said he started his own business at age 13 or 14 and developed the business further after he had completed Year 12. He related that his father and brother each fled the country, first his father to Syria and later his brother to Germany, [ … ], leaving Mr Saleh with a large measure of responsibility for looking after the family. During the Iraq War in 2003 when the offender was 21 years old, he said he witnessed death and devastation in the streets of southern Iraq from the bombings. Following the war, he attended university in Basra where after four years, he obtained a degree in accounting. Although he desired a corporate career, the lack of opportunities meant that he continued his business as a barber. The offender claims that from 2008, he came under threat and did not leave the house for a year. Acting on his father's advice, he left Iraq to join his brother in Germany and stayed for two years, working for his brother who also had a hairdressing business. He returned to Iraq for the purpose of an arranged marriage at the initiative of his father. His new wife was an Australian citizen. He entered Australia on a spouse visa, in 2012. The offender and his wife settled in Auburn, Western Sydney. [ … ] They separated about eight years ago, around the time their son was born. [ … ] The offender is now reunited with his wife, and they have a second child, a daughter of about 15 months. Since arriving in Australia, he focused on establishing himself in business. He purchased a barbershop first, in a Liverpool shopping centre complex, secondly in Wetherill Park and a third in Queensland. Mr Saleh reported no history of psychological or psychiatric intervention.
3. I pause at this point, to express the view that the material adduced as to the offender's upbringing does not disclose a history of profound deprivation such as to mitigate the sentence that would otherwise be appropriate.
4. Mr Machlin noted that the offender went on to describe, "[a] marked decline in circumstances in the period leading up to and surrounding his charges. He said in 2018 he commenced using Tramadol, an opioid painkiller, for back pain. He related that his father died in 2019 following heart surgery. His mother subsequently died of pancreatic cancer. He said, in response to his grief, he turned to substance use by way of unprescribed Tramadol, alcohol, cocaine, and finally methamphetamine for a brief period."
5. The offender told the psychologist that he was using one substance or another throughout the day, he "avoided sunlight" and was barely going to work. He related that his drug use was prevalent during, what the offender disingenuously termed were, the "periods of conflict with the victims" in both the trial and related offences, as well as the offence under appeal.
6. By virtue of sub-section 21A(5AA) of the Crimes (Sentencing Procedure) Act this evidence concerning the self-induced intoxication of the offender at the time the offences for which he is to be sentenced is not to be taken into account as a mitigating factor.

Letters of Support

1. Also tendered in the offender's case on the hearing of the plea in mitigation, were several letters of support. I have read and considered all of those letters of support. They each paint a picture of the offender as a person of good character who continues to have the support of family and friends. Needless to say, none of those persons witnessed the crimes committed by the offender.
2. The brother of the offender however did know at least part of what had occurred. As referred to earlier, after the victim photographed her injuries on the morning of 6 August 2020, she sent the photos to the offender's brother, who forwarded them to the offender (Ex G). Thereafter, the offender's brother received a text message from the offender that stated, "Don't worry about her, I've been for years like that with her"; "She's used to it"; and "Let her fuck and get killed".
3. The absence of any reference, to the contents of this text message, in the letter in support of the offender, from his brother, makes it not possible for me to accept the offender's brother's statement that, "Ahmed is a kind-hearted person who has always went out of his way to help others." Similarly, given the contents of that text message, I am unable to accept the offender's brother's statement that, he was "shocked when [he] first heard about the allegations against Ahmed by [the victim]".

The Offender's Health and Welfare

1. The letters of support from the family and friends of the offender also expressed their concern about the health and welfare of the offender, as a prisoner in the NSW gaol system.
2. Those concerns were also reflected in the Psychological Assessment Report of Mr John Machlin, Clinical Psychologist, dated 30 August 2023, where the following opinion is expressed: "Bereavement, substance use and depression appear to have adversely affected him in advance of the offences and worsened under the stress of his incarceration and criminal proceedings… It remains difficult to quantify his symptoms or to make firm conclusions about whether a diagnosable condition applied at specific stages of his progressive decline. He has suffered considerable stress in custody having so far spent over 26 months in maximum security settings. He is separated from his two young children and displaced from his family of origin aside from his brother's intermittent presence in Sydney to support him. He conveys a sense of having 'lost everything' considering that he had created a good life for himself in Sydney and was running three businesses. He suffered a serious assault in custody at Silverwater causing extensive facial fractures, with ongoing pain, difficulty eating, and ongoing fear and vulnerability. He has significant trauma symptoms, possibly on the scale of post-traumatic stress disorder. His ongoing physical injuries and sense of threat will likely impede his recovery and prolong his trauma, adding hardship to his incarceration. I expect he will require continuing access to medical treatment and could benefit from any mental health supports available to him. I suspend other therapeutic recommendations at this stage, anticipating Corrective Services personnel will assess him in due course as to his suitability for the available suite of behaviour change programs addressing substance use and violence".
3. I accept on the balance of probabilities that the offender was the victim of an assault by other prisoners on or about 11 May 2023, during which he sustained significant injuries including fractured facial bones.
4. I also accept on the balance of probabilities that the offender was admitted to the Prince of Wales Hospital on 22 September 2023, after suffering a suspected heart attack, whilst in custody. As the discharge summary from the Prince of Wales Hospital makes clear, the offender had in fact experienced an episode of "atrial fibrillation with rapid ventricular rate on the background of T2DM and hypercholesterolaemia."
5. The Court understands that atrial fibrillation is an irregular heartbeat that is often fast as it was in the case of the offender on 22 September 2023. The discharge summary also reveals that the offender was examined, treated before being discharged on 27 September 2023 with on an ongoing treatment plan featuring a regime of prescribed medication and follow-up.
6. It is submitted that the physical health and condition of the offender should be taken into account in the sentencing process.
7. On the one hand, it is the responsibility of the executive government, not the courts, to ensure the safety of prisoners in custody. On the other hand, [13] the physical health and safety of a prisoner is a relevant consideration in determining an appropriate sentence. Accordingly, I recommend to the authorities that administer the gaols that as well as continuing to monitor the health of the offender that consideration be given to placing the offender in protective custody, if that has not already occurred.
8. Generally speaking, the hardship that will be suffered by a prisoner in gaol because he or she will be in protective custody, is a matter to be taken into account in sentencing. Protective custody can only be taken into account in mitigation of sentence or in the finding of special circumstances where there is evidence that the conditions of imprisonment will be more onerous. [14] In the present case, there is no such evidence before the Court, that enables me to find, on the balance of probabilities, that conditions of imprisonment will be more onerous for the offender in the event he is placed in protective custody.

Hardship to family and dependants

1. In her letter of support dated 7 September 2023, Amna Alhassan, the wife of the offender, states that she and the offender reconnected about two years ago. There are two children of their marriage; a son aged 8 years and as daughter aged 18 months. Ms Alhassan wrote: "I have been very worried for him and I don't know how our children are going to cope with him not being a part of their lives while he is in prison. I also need his support to raise our two young children."
2. Hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is highly exceptional. In this case, the evidence has not established that it is so highly exceptional.

Criminal History

1. The offender's NSW criminal record shows that he was convicted of driving whilst disqualified in 2016. A matter that I put to one side. Ordinarily an offender's pre-offence conviction-free history is a matter that would entitle the offender to some leniency when being sentenced. However, in this case the offender's crimes against the victim spanned four years and there is subsequent offending in that the sentence appeal matter was committed after the offences on indictment and the s166 certificate. Consequently, in the circumstances of this case, the fact that the offender had not been convicted of any criminal offences when he committed the offences against the victim is not a basis for treating as a mitigating factor the absence of any criminal record before he commenced offending against the victim in August 2016.

Motive

1. Also relevant to the assessment of the offender's moral culpability is his motive in committing these offences against the victim. Whatever sexual gratification the offender sought to obtain from his repeated sexual assaults of the victim, it is clear that he sought to obtain psychological gratification by exercising domination and control, often through demeaning and degrading violence.
2. The Crown has submitted that the offender's motive was largely to punish the victim for, what he said to her at the time was, her infidelity. Regardless of whether this was a genuinely held belief or an excuse to repeatedly assault the victim, I find beyond reasonable doubt that this perverted motive to punish the victim heightens the moral culpability of the offender.

Legislative Guideposts

1. The relevant maximum penalty and any applicable standard non-parole period are legislative guideposts to be observed when exercising the sentencing discretion.
2. Careful attention to the applicable maximum penalties is required, not the least because they invite comparison between cases that are so grave as to warrant the imposition of the maximum penalty and the particular case that is before the court for sentencing.
3. The standard non-parole period for an offence is a matter to be taken into account by when determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. For 10 years now, it has not been necessary for a court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from an offence to which the standard non-parole period is referable. [15]

Consideration and Conclusions

1. Sub-section 168(3) of the Criminal Procedure Act relevantly provides that when sentencing a person for a related offence, the sentencing court has the same functions, and is subject to the same restrictions and procedures, as the Local Court. I am therefore cognizant that the maximum penalties that could be imposed by this Court are the same as those applying in the Local Court, namely 2 years imprisonment per related offence. As well, this Court's powers to accumulate such sentences are restricted beyond a period of three years.
2. In the circumstances of this case, having considered all possible alternatives, I am satisfied that no penalty other than full-time imprisonment is appropriate.
3. Not every component of a party's submission is a matter that a sentencing judge is, per se, obliged to take into account. Nevertheless, I have considered all aspects of the case of both parties on sentence. In deference to the argument of Mr Coroneos for the offender, I will observe that I am unpersuaded that he has made to make good his submission that "if imprisonment is to be imposed, the shortest possible sentence should be imposed." The authority for that proposition is said to be R v James (1985) 14 A Crim R 364.
4. In that decision of the Full Court of the Supreme Court of Western Australia, case, the appellant James appealed against the sentence of imprisonment imposed upon him for his unlawful and indecent assault of a 12-year-old boy. On appeal, Burt CJ and Wallace J said that "imprisonment is to be seen as a sentence of last resort." Their Honours concluded, having regard to the character and physical and mental condition of the appellant James, and the fact that there was little likelihood of him repeating the offence, the trial judge's sentence of imprisonment should be replaced by a fine. In dissent, Franklyn J stated that a fine would not provide sufficient punishment or deterrence having regard to the aspect of corruption (offer of money) and the youthfulness of the boy.
5. I am unable to accept that this 1985 West Australian case of R v James is, as contended for by the Counsel for the offender, authority for the proposition that if imprisonment is to be imposed, the shortest possible sentence should be imposed. Rather, it is authority for the proposition that a full-time custodial sentence should only be imposed when no other sentence is appropriate.
6. The principle that imprisonment is a last resort is in any event replicated in NSW, by s.5 of the Crimes (Sentencing Procedure) Act 1999. However, that Act also introduced other significant sentencing requirements including a statement of the objects of sentencing and provisions specifying the aggravating and mitigating circumstances that were to be taken into account in sentencing. More importantly, the statutory regime for standard non-parole periods was introduced in February 2003.
7. I have had regard to the objectives of sentencing referred to in s.3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the offender's conduct; recognising the harm done to the victim and the community and the rehabilitation of the offender.
8. I do not find that the offender has no prospects of rehabilitation. However, given the offender's complete lack of remorse and an absence of evidence as to the offender's objective progress in terms of a significant and measurable improvement in his attitudes to drugs and alcohol abuse, the offender's prospects of rehabilitation cannot be described as better than not so good.
9. I consider that there is a risk of him re-offending, especially against women with whom he develops an intimidate relationship.

Aggregate Sentence

1. In the present case I will impose an aggregate sentence. Three particular things flow from that, as provided for by s.54B of the CSPA.
2. First, I am obliged to take into account any applicable standard non-parole period in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender, in the process of instinctive synthesis
3. Secondly, when determining an aggregate sentence of imprisonment, I am obliged to indicate, for those offences to which a standard non-parole period applies, the non-parole period that I would have set for each such offence to which the aggregate sentence relates had I set a separate sentence of imprisonment for those offences.
4. Thirdly, if setting a non-parole period that is longer or shorter than the standard non-parole period, I am obliged to record the reasons for doing so including each factor taken into account for doing so.
5. As well, it is appropriate [16] , that I record whether any offence is, or is not, so grave as to warrant the imposition of the maximum penalty. The nature of the crime and the circumstances of the criminal are both considered in determining that issue.
6. In the now 30 year old case of R v Boatswain, an unreported decision of the NSW Court of Criminal Appeal of 15 December 1993, the offender pleaded guilty to seven counts of aggravated sexual intercourse without consent against two different victims on different occasions within July 1991. Grove J (with whom Studdert and James JJ agreed) said that as far as the offences committed against the first victim was concerned, the offender Boatswain had subjected her to, a sequence of sexual indignities which combined to place his actions in the worst category of assaults of this nature. Those sexual indignities included being bound and tied whilst forced to lay face downwards, the threat of a knife and fellatio, cunnilingus, sodomy as well as penile/vaginal intercourse. Her ordeal was magnified by disgusting verbal descriptions which accompanied his actions as well as repetitive degradations committed upon the blindfolded victim, who suffered severe consequences.
7. Grove J went on to state the indignities heaped upon the second of Boatswain's victims was no less serious. Again, there was penile penetration of the vagina and of the anus. An act of fellatio was rendered the grosser by his ejaculation and forced ingestion of semen by the victim. His Honour went on to state that whilst Boatswain's offences may not be the worst imaginable, they would nevertheless, fall into the category of the worst types of this offence.
8. I have considered Stephens v R [2020] NSWCCA 93 at [58] - [64], and the sentencing decisions for aggravated sexual assault offences there referred to, including the case of R v Anderson [2002] NSWCCA 304. Anderson is an example of a case that the Court of Criminal Appeal considered fell "just short" of the worst class of case. The offender Anderson pleaded guilty to the offences that he and a co-offender committed, after they had escaped from gaol. They kidnapped, assaulted, repeatedly raped, threatened with death and finally robbed the victim of her car and money within about a six-hour period of time.
9. Those sexual assaults consisted of penile/vaginal intercourse and fellatio; and they were committed in company. The victim, "suffered abrasions and bruising to various parts of her body. She also suffered a dislocated left knee and a labial split on the introitus and mons. As to the issue of worst case, Spigelman CJ (with whom Adams J and Blanch AJ agreed) held at [22]: "The injuries were substantial, but the worst class of case of an attack of this character could involve injuries of a more substantial kind than bruising and abrasions and also, a higher level of threat, over a sustained period, instilling fear for the victim's life. I agree with his Honour that the offences in the present case fell "just short" of the worst class of case…"
10. I take that comment about "injuries of a more substantial kind than bruising and abrasions," to be tempered, given that a sentencing judge cannot take into account as an aggravating factor a circumstance that would warrant conviction for an additional or more serious offence: R v De Simoni (1981) 147 CLR 383 at 389. I say that in the sense that injuries that were really serious would constitute additional offences of causing grievous bodily harm.
11. In the case of the 11th and 12th counts on the indictment, I propose indicating non-parole periods that are longer than the standard non-parole period, for the following reasons.
12. The 11th and 12th counts are each premeditated crimes of sexual violence in committed upon the victim, in her home, in the context of his ongoing domestic violence of her by the offender. They are further aggravated in their commission by the offender's use of a weapon, his non-use of a condom and his actual knowledge of a lack of consent.
13. The moral culpability of the offender at the time he committed the 11th and 12th counts was of the highest order. He had been physically and sexually assaulting the victim, whenever he cared to for some 3 ½ years, during which time he inflicted long lasting and substantial injuries and instilled in her a fear for her life.
14. At the sentencing hearing, the victim read from a prepared victim impact statement that I have considered. I propose giving weight to it because the conduct of the offender is otherwise established beyond reasonable doubt and the statement is focused on the subsequent effects on the victim.
15. In part, the victim stated: "Over the years, I have endured physical, sexual, psychological, emotional, and financial abuse at the hands of the perpetrator. The effects of these abuses have had and still have an impact on my life. "The multiple punches that caused my deviated septum keeps me up at night due to not being able to breathe properly. The multiple punches to my head have left me with a permanent injury, dehiscence in my semi­auricular canal causing severe vertigo making it debilitating for me to move, and nystagmus in my left eye both of these on occasion will have me hospitalised for weeks. "The burn scars and the knife injury scars that I have to see on a daily basis, the missing teeth due to the ongoing physical abuse and the [Sub Ventricular Tachycardia] SVT, the irregular heart palpitations that I continue to have from the stress the offender has put me through. "I am till today too scared to have any further medical investigations and find out any other possible complications the perpetrator has left me with. I am to this day too scared to enter any hospital as a patient thinking the abuser will find me like the other times, he found me in the past."
16. The 12th count on the indictment features "very great heinousness" and is devoid of facts that mitigate the seriousness of the crime or reduce the moral culpability of the offender. In addition to the aggravating factors that it shares with the 11th count, the offender added to his humiliation of the victim when committing the 12th count by penetrating her anus and ejaculating inside it.
17. By the time the offender committed the 12th count on the indictment, whatever degree of sexual satisfaction he obtained by penile penetration of the victim's anus he was clearly obtaining psychological satisfaction from his dominance and gratuitous infliction of pain. By the time the offender committed the 12th count on the indictment, he had woven a web of coercive control around the victim. The offender well knew that the victim's adherence to her beliefs meant that she was vulnerable to his threats of exposing her as someone who had breached the moral code and social strictures associated with those beliefs.
18. The matters personal to the offender do not justify leniency. In this case nothing lessens the weight to be attached to denunciation or general deterrence. As well there is the need to protect the community from the offender and for the specific deterrence of a remorseless and repeat offender.
19. The 12th count on the indictment is an offence that warrants the imposition of the maximum penalty. It is not to the point that it is possible to imagine a worse instance of aggravated sexual assault.

Totality

1. The sentencing principle of totality, including an implicit assessment of notional accumulation and concurrency in the aggregation of the indicative sentences, must be given full weight in this case.
2. Whilst an extremely long total sentence may be 'crushing' upon an offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending.

Special Circumstances

1. I accept that a finding of special circumstances could appropriately be made in this matter, based upon the offender's continuing need for rehabilitation and his need for an extended period of supervision upon his ultimate release on parole. Having regard to the length of the balance of term, there will be a small reduction in the ratio between the Non-Parole Period and the head sentence.

Appeal Against the Severity of a Local Court Sentence

1. Whilst he was on Supreme Court bail for the offences committed against the victim, Ahmed Mahdi SALEH committed the offence of stalking another, different woman (Ola DARIR) with the intention of causing the other person to fear physical or mental harm, in December 2021, contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
2. That offence is sequence 1 of Court Attendance Notice H84771506 ("CAN H84771506/1").
3. The offender was convicted of the offence in the Parramatta Local Court, after a hearing. The maximum penalty upon conviction on indictment is imprisonment for 5 years, or 50 penalty units, or both. On 25 January 2022, he was sentenced to a term of full-time custodial imprisonment of 1 year and 4 months, to date from 10 January 2022, with a non-parole period of 1 year, expiring on 9 January 2023.
4. On 24 March 2023, the offender lodged an appeal against the severity of the sentence imposed by the Local Court.
5. Mr SALEH's appeal against the severity of the sentence imposed upon him by the Local Court, on 25 January 2022, for that stalking offence, can be dealt with expeditiously.
6. It is sufficient, for present purposes, to adopt as generally correct the findings relied upon by the Magistrate in convicting the appellant. I have considered the thoughtful submissions of Mr Coroneos. I am unable to accept that the penalty imposed by the magistrate was excessive. In my view, it was a just and appropriate sentence. However, I propose varying the sentence imposed by the Local Court on this appealed stalking offence, due to the need to give effect to the principle of totality.

Imposition of Sentence

1. As the Offender is to be sentenced for a "serious offence" within the meaning of the Crimes (High Risk Offenders) Act 2006, I am required by virtue of s.25C of that Act to cause the offender to be advised of the existence of the Crimes (High Risk Offenders) Act 2006, and of its application to the serious offences for which the offender is to be sentenced. Accordingly, I ask the Offender's barrister and/or solicitor to undertake that task on the Court's behalf.
2. First, I will record the indicative sentences for the indictment offences and the related offences on the s166 certificate. For those offences which have an applicable SNPP I will also state the indicate NPP.
3. Secondly, I will announce an aggregate sentence. It is the sentence and NPP that the offender will serve for the indictment offences and the related offences on the s166 certificate. It is not arrived at by simply adding up the indicative sentences. When announcing the aggregate sentence, I will state the date it starts, the date it ends, and the date when the offender is first eligible for parole for the aggregate sentence.
4. Finally, I will announce the sentence for the appealed stalking offence. I will state the date it starts from, the date it ends and the date when the offender is first eligible for parole for that sentence.

The Indicative Sentences Count 2: Imprisonment for 10 years, non-parole period 7 years. Count 3: Imprisonment for 15 years, non-parole period of 10 years. Count 4: Imprisonment for 15 years, non-parole period of 10 years. Count 5: Imprisonment for 15 years, non-parole period of 10 years. Count 6: Imprisonment for 1 year. Count 7: Imprisonment for 1 year. Count 8: Imprisonment for 10 years, non-parole period of 7 years. Count 9: Imprisonment for 2 years 6 months. Count 10: Imprisonment for 2 years 9 months. Count 11: Imprisonment for 18 years, non-parole period of 13 years 6 months. Count 12: Imprisonment for 20 years, non-parole period of 15 years. Count 13: Imprisonment for 3 years. Count 14: Imprisonment for 3 years. Count 15: Imprisonment for 3 years. Count 16: Imprisonment for 1 year. On each related offence (seq's 10, 13, 26, 27 & 28): imprisonment for 1 year.

Aggregate Sentence Ahmed Mahdi SALEH, please stand. For the offences that are counts 2-16 on the indictment dated 13 June 2023 and the related offences on the s166 certificate dated 6 September 2021: 1. You are sentenced to an aggregate term of imprisonment of 26 years commencing on 24 May 2021 and expiring on 23 May 2047; 2. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period of 18 years is set. It expires on 23 May 2039.

Appealed Stalking Offence I vary the sentence imposed for the appealed stalking offence, as follows: 1. You are sentenced to a minimum term of 11 months and an additional term of 5 months. This sentence will commence on 24 October 2038. 2. Therefore, the non-parole period for the appealed stalking offence will expire on 23 September 2039 and the additional term will expire on 23 February 2040. Accordingly, the earliest date that you will be eligible to be released on parole is 23 September 2039.

Endnotes

1. S.578A, Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987
2. TT = Trial Transcript.
3. by reason of the Crimes (Sentencing Procedure) Act, s.21A(2)(eb).
4. Jonson v R [2016] NSWCCA 286 at [40], [55], [57], [63] and [78].
5. sub-section 21A(2)(n) of the Crimes (Sentencing Procedure) Act.
6. sub-section 21A(3)(b) of the Crimes (Sentencing Procedure) Act.
7. sub-section 21A(2)(g) of the Crimes (Sentencing Procedure) Act.
8. sub-section 21A(3)(a) of the Crimes (Sentencing Procedure) Act.
9. Sub-section 4(a) of the Crimes (Domestic and Personal Violence Act 2007 (NSW).
10. Ibbs v The Queen (1987) 163 CLR 447at 452 per Mason CJ and Wilson, Brennan, Toohey & Gaudron JJ.
11. R v PGM (2008) 187 A Crim R 152 at [26] per Fullerton J.
12. R v AJP (2004) 150 A Crim R 575 at [23] - [25] per Simpson J
13. Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
14. As McHugh J stated in York v The Queen (2005) 225 CLR 466 at [31]
15. RWB v R [2010] NSWCCA 147 at [192]-[195]; R v LP [2010] NSWCCA 154 at [21]
16. Section 54B of the Crimes (Sentencing Procedure) Act, as amended by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024