Regina v Mufiz Rahaman

Evidence at the hearing

1. The offender gave evidence before me and was cross-examined on 11 August 2016 with the assistance of a Rohingyan interpreter. His evidence can be summarised as follows.
2. The offender was born and raised in a remote village in Myanmar, a considerable distance from the capital Yangoon. The roads in the village were made of dirt and the houses constructed from bamboo. The offender used a pit toilet and had to walk for about 15 minutes to obtain clean water. He was raised on a mainly vegetarian diet because his family could not afford to buy meat. They occasionally ate fish they caught in the river and ate beef about once per year. The offender and his family did not own a car or travel by motor transport.
3. The offender is Rohingyan. He gave evidence that the Rohingyan people are a cultural minority in Myanmar who are not considered to be citizens and are often the subject of persecution of the authorities.
4. The offender attended a madrassa in Myanmar where he studied the Koran and languages including Arabic, Urdu, Farsi and Hindi. He lived in the madrassa for part of his studies. When the offender was aged about 8 years, an older boy aged about 16 approached him at night and told him that if he did not have sex with him that he would kill him. The offender gave evidence that the older boy had penile anal intercourse with him on that night and that it was very painful.
5. The offender gave evidence of other occasions when he was forced to have sexual intercourse with older boys in Myanmar either as a result of threats and or physical violence. He gave evidence that he did not tell anyone about these attacks because the boys would threaten to kill or beat him. As result he was afraid and gave evidence that he was ashamed.
6. The offender's brother came to Australia in about 2009. In 2012 there was civil unrest in Myanmar resulting in riots. His parents advised him to leave because they believed he could be killed if he remained in Myanmar. The offender had previously observed people from his village being taken by the police and later being returned dead to their families. To his observation young people aged between 13 and 15 years were easy targets for the police. The offender had been stopped by the police in his village and they slapped him. On other occasions, the police had come to his home and his parents had hidden him.
7. The offender came to Australia from Myanmar in about 2012 as a refugee. He arrived on Christmas Island by boat. He was relocated to Darwin and then to Tasmania. He was released from immigration detention and settled in Sydney with his brother. He attended an English language school for one year before attending Bankstown High school and enrolling in year 10 for about the last 3 months of 2014.
8. On 8 January 2015 the offender was living with his brother. He attended the premises to meet his friend Ibrahim to help him purchase a plane ticket to Melbourne. He arrived about 11:45am to find Ibrahim sleeping. Ibrahim told the offender that he wanted to sleep for a while longer. The offender then went to another friend's room, Yahiya. Yahiya was not there, but the complainant was.
9. The offender gave evidence that he asked the complainant jokingly "will you allow me to do the thing you did the other day with the other man?" This was a reference to the complainant having sex with another man at the premises on an earlier occasion. The offender gave evidence that the complainant replied, "yes if you want to do it, I will allow you to do it, but not in my anus just between the thighs".
10. The offender gave evidence that he did not think that what he asked was a bad thing or a crime and believed that males had sex with each other as occurred in Myanmar. The offender said that he did as the young boy requested and did not put his penis into his anus, however he accepted that he did touch his anus but did not insert his penis fully. The offender gave evidence that he was not forceful, he did not hit the complainant and he did not threaten him.
11. The offender gave evidence that he would now solemnly apologise to the complainant and to his family. He said that no human being should be treated in that way.
12. In about mid-July 2016 the offender was informed by his family that his brother had been taken by the police in Myanmar and had been killed. His family was told that his brother had been buried at a place and that they were not permitted to retrieve his body. The offender was informed that his brother's organs had been removed.
13. The offender has managed to remain in contact with his family in Myanmar despite being in custody. They own a mobile telephone and use a sim card from Bangladesh, which is illegal. He cannot always get through to his family because they often switch off the mobile telephone to avoid detection by the authorities. He did not have contact with his family for the first 4 to 5 months that he was in custody. After that, the longest period for which he was not in contact with his family was approximately one month.
14. In cross-examination, the offender accepted that he had signed the agreed facts after he had been taken through them with the assistance of an interpreter. He accepted that he had been given legal advice prior to doing so. He accepted that the agreed facts were true. He accepted that he told Dr Chew that the agreed facts were true.
15. The Crown Prosecutor then took the offender through the agreed statement of facts. The offender sought to dispute some of the matters set out in th agreed facts. He accepted that he did insert his penis into the complainant's anus but said that he did not do it fully. He maintained that the complainant had consented.
16. He gave evidence that he "had to sign the facts" because he had agreed that he was guilty. He said that at the time he was devastated, guilty and sorry and that his mind was not in the right place.
17. He did not accept what the agreed facts stated about the involvement of the complainant's father. He maintained that he did not know that what he was doing was wrong and said that if he thought it was wrong then he would have apologised at the time to the complainant's father. He said that he did not deny the sexual act because he did not think it was wrong.
18. He accepted that the complainant was very young, but did not exactly know how old he was. He gave evidence that he had seen the complainant have sex with an older, larger man on a prior occasion.
19. After seeing and hearing the offender's evidence I do not accept the offender's version of events. The offender did not tell Dr Chew or the author of the Pre-Sentence Report that he had observed the complainant having sex with another man prior to the offence or that he agreed not to fully penetrate the complainant at the complainant's request. It appears that the first time these matters were raised was when he gave evidence before me. The Crown was not in a position to lead evidence on those matters. It seems highly unlikely that the complainant's father would not have involved the police if there had been other allegations of interference with the complainant. A number of the offender's answers to questions in chief were volunteered and not responsive to the questions that he was asked; in particular, when he gave evidence that he was unaware that his conduct was crime in Australia and that he did not fully penetrate the complainant. The evidence that he did not fully penetrate the complainant is inconsistent with the psychical evidence. Those answers and the way that they were given lead me to the conclusion that the offender was trying to minimise his participation in the offence and was not being completely truthful. I do not accept the offender's explanation that the content of the agreed facts was forced upon him by reason of his admission of guilt. He gave a number of contradictory answers about whether various parts of the agreed facts were true. For these reasons, where there is any dispute between the offender's evidence and the agreed facts, I would prefer the version provided for in the agreed facts.

Psychological report of Dr Gerald Chew

1. The court received a psychiatric report of Dr Chew dated 1 March 2016. Dr Chew was present in court, gave evidence and was cross-examined. The report can be summarised as follows.
2. The offender is a single, 20 year old man with no dependent children. Prior to his incarceration he was residing in the Lakemba area. The offender told Dr Chew that he had been in Australia since 2012 and had spent one year in immigration detention before residing in the community on a bridging visa. The offender told Dr Chew that it was his understanding that the bridging visa had been cancelled. The offender told Dr Chew that he was "stateless" and could not return to persecution in Myanmar. He had been receiving Centrelink benefits.
3. The offender gave a history of significant sexual abuse as a child between the ages of 8 and 14. He told Dr Chew that young males aged about 20 would force him to have anal and oral intercourse with them. He suffered regular physical beatings from the older children in the village to the point where he feared for his life.
4. The offender reported to Dr Chew that his mood had been depressed for at least a year, becoming worse since his entry into custody. The offender slept poorly, woke early of a morning and had poor concentration. The offender stated that he often felt hopeless about the future, that he had ruined his life and that he contemplated thoughts of guilt regarding his offence on a daily basis.
5. The offender told Dr Chew that he had thought about suicide, but that he did not have a clear plan, citing the need to stay alive for his mother as a major protective factor.
6. Dr Chew diagnosed the offender with major depressive disorder as well as post-traumatic stress disorder (PTSD). Dr Chew recommended antidepressant medication and cultural and language appropriate psychological therapy. Dr Chew referred the offender for further treatment by Justice Health and the Forensic Mental Health Network. Dr Chew noted that the offender requires ongoing treatment for his sexual offending, considering the offender's lack of prior criminal history as a very good prognostic factor.
7. Dr Chew opined that the fact that the offender had been informed about what happened to his brother was likely to exacerbate his PTSD, although he had not examined him after he was told. Dr Chew did not believe the offender was depressed at the time of the offence and that his depression was linked to his incarceration. Dr Chew did not believe that there was a causal connection between his mental condition and the offending conduct. It was more likely that the cultural acceptance of sexual abuse in Myanmar led to the offence. Dr Chew described this as part of the offender's psychological schema; that he had adjusted to the world by reference to his experience of it. At some level he understood that what he was doing was wrong, but his actions were guided by his experience.

Department of Corrective Services Case Note

1. A case note was prepared by Mr Andrew Reddon, psychologist, of the Department of Corrective Serviced. I will not repeat matters already referred to in Dr Chew's report.
2. The psychologist assessed the offender as a moderate to high risk of re-offending. The psychologist opined that the offender displayed little insight into the need for treatment and management of his offending behaviour.
3. The psychologist suggested that further education in the English language and other basic facets of schooling would benefit the offender. He also suggested that access be given to the offender to sexual offending programs within the Corrective Services system should he be sentenced to full-time custody of 2 or more years. He noted that the waiting list for inclusion in such programs is quite lengthy.
4. He indicated that the offender would benefit from community based supervision and continued psychological counselling to address his level of risk and to develop a risk management plan.

Pre-sentence report (PSR)

1. The Court received a Pre-Sentence Report dated 9 March 2016.
2. The offender gave the author of the PSR a history consistent with the prior reports which I will not repeat.
3. The author of the PSR assessed the offender as a medium risk level of re-offending. The author acknowledged the offender's difficulties with the English language, his low level of education, the fact that this is the first time the offender has been in custody, his isolation and his lack of support and family contact, in addition to the matters identified by Dr Chew and the psychologist.
4. The offender has been placed in protective custody. He has had one minor assault charge whilst in custody.
5. The offender's bridging visa has been cancelled. The offender had a lack of insight into his actions, normalising them as culturally acceptable to excuse his offending behaviour. The offender maintained that the complainant consented and was a willing participant.

Consideration

1. I must have regard to the objects of the Crimes (Sentencing Procedure) Act 1999 as set out in section 3 and the purposes of sentencing set out in section 3A, together with the aggravating and mitigating factors provided for in section 21A, such as are established by the evidence to the requisite standard of proof.

Objective seriousness

1. The courts take an extremely serious view to matters of this kind. The most significant factor that determines the objective seriousness of the offence is the extent to which the offender exploited the youth of the victim: R v Sea unreported NSWCCA 13 August 1980 per Badgery-Parker J. It is generally considered that the younger the victim the more serious the offence: R v KNL (2005) A Crim R 268 at [42].
2. The victim in this matter was 10 years of age. The complainant was vulnerable by reason of his age. The victim did not consent and believed that he would get in trouble with his father. The offender was 19 years of age.
3. The nature and extent of the sexual intercourse was significant. The penile penetration of a young child's anus is of significant gravity. Semen belonging to the offender was detected in both the anal and rectal smears taken from the complainant.
4. The offence was opportunistic and not did not involve any planning, coercion or grooming of the victim. The offence is above the mid-range of objective seriousness.

Deterrence

1. The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW (2000) 112 A Crim R 1 at [20] where Sheller JA stated
2. the maximum penalties the legislature has set for child sexual assault offences reflects community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.
3. The Court of Criminal Appeal has stated that that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults: see R v Fisher (1989) 40 A Crim R 442 at 445.
4. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge. The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
5. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, the causal connection between the mental condition and the offending conduct, whether the offender acted with knowledge of what they were doing and the gravity of their actions, and whether the community requires protection from the offender by reason of the mental condition suffered.
6. The offender has been diagnosed as suffering from PTSD and Major Depressive Disorder. The PTSD arose as a result of being physically and sexually abused as a child and as a result of witnessing other violent acts including killings. His major depressive disorder seems to have developed whilst he has been in gaol. There does not appear to be a causal connection between the offender's PTSD and the commission of the offence. Rather, the cultural acceptance of such behaviour was the causal factor. I accept that his mental condition will make his time in prison more difficult.
7. I am not satisfied on the balance of probabilities that the offender did not understand that his actions were wrong. Even if I was, it would not significantly reduce the need for general deterrence in this matter because the courts have a role to play by sending a clear message that these types of offences will attract substantial punishment irrespective of the offender's cultural background: R v Reynolds NSWCCA unreported 7 December 1998.
8. As a victim of child sexual assault himself, the offender knew that the offending conduct was likely to cause the complainant pain, distress, humiliation and shame. However, counsel for the offender submitted and I accept that the community from which the offender came had a demonstrated lack of proper morality. In all of the circumstances the moral culpability of the offender was slightly reduced.
9. There is a need for specific deterrence in the present case. The offence appears to have been committed as a result of it being culturally acceptable conduct in the offender's childhood. The offender has shown little insight into his offending behaviour. He has been assessed as being a medium to high risk of reoffending. It is therefore necessary for the punishment imposed to deter him from such conduct in the future.

Aggravating factors

1. The offence was committed in the victim's home: section 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

1. The offender has no prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.
3. The offender contended that I could be satisfied that he had demonstrated remorse sufficient to establish the mitigating factor provided for by section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. In order to make that finding I would have to satisfied on the balance of probabilities that the offender accepted responsibility for his actions. In his history given to Dr Chew and to the author of the pre-sentence report the offender maintained that he did not believe that what he did was a crime and that it was culturally acceptable in Myanmar. In his evidence before me he expressed an apology. At no time, other than in cross-examination, did he grapple with the plain fact that the offence was likely to physically injure and psychologically affect the complainant. I am unable to find on the balance of probabilities that the offender has accepted responsibility for his actions and accordingly I do not find the mitigating factor established. I accept that the offender now has a better understanding of the laws applicable in Australia and that he has learnt a difficult lesson by reason of his actions.
4. The offender entered a plea of guilty at a time when his trial was listed before Judge Lakatos SC: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The appellant is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is one of 10%.
5. I have considered the circumstances of the offender's upbringing and his life before coming to Australia. He was subjected to physical and sexual abuse as a child. He grew up in poverty with little or no education or employment opportunities. He was persecuted as Muslim member of a minority group in Myanmar. The offender's deprived background is a matter that should be considered as a matter that mitigates the sentence imposed: Bugmy v R (2013) 249 CLR 571.

Penalty

1. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.
2. The appropriate term of imprisonment is one of 5 years and 6 months that will be discounted by 10% to reflect the plea of guilty.
3. I find that there are special circumstances. It is the offender's first time in custody, he speaks very little English and has only one brother in Australia. He is unlikely to be able to access any educational or rehabilitation courses in custody because of his lack of English and the fact that he belongs to a minority group.
4. The offender is convicted.
5. The offender is sentenced to 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 9 January 2015.
6. The offender will be eligible to be released on parole on 8 May 2018.

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: 07 September 2016