Director of Public Prosecutions v Ayoub (No 5)

[2023] ACTSC 140

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Ayoub (No 5)

Citation: 

[2023] ACTSC 140

Hearing Date: 

6 June 2023

Decision Date: 

6 June 2023

Before:

Mossop J

Decision: 

See [28]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – inflicting actual bodily harm with intent to engage in sexual intercourse – sexual intercourse without consent – common assault – victim was a sex worker in a brothel – offences in mid-range of objective seriousness – guarded prospects of rehabilitation – offender has criminal history but no prior sex offending – sentences of imprisonment imposed and partially suspended

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 7

Crimes Act 1900 (ACT), ss 26, 52, 54

Parties: 

Director of Public Prosecutions

Joseph Ayoub ( Offender)

Representation: 

Counsel

M Howe ( DPP)

J Purnell SC ( Offender)

Solicitors

Director of Public Prosecutions

Tu’ulakitau McGuire ( Offender)

File Numbers:

SCC 57 of 2021

SCC 58 of 2021

MOSSOP J:

Introduction

1․After an eight-day trial Joseph Ayoub was found guilty of three offences:

(a)Count 1: inflicting actual bodily harm with intent to engage in sexual intercourse contrary to s 52 of the Crimes Act 1900 (ACT) (CC2020/10880), the maximum penalty for which is 14 years’ imprisonment;

(b)Count 3: sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900, the maximum penalty for which is 12 years’ imprisonment; and

(c)Count 7: common assault contrary to s 26 of the Crimes Act 1900, the maximum penalty for which is two years’ imprisonment.

Facts

2․On 11 September 2020 the offender attended the Langtrees brothel in Mitchell. He was in the company of an acquaintance. He had been to the brothel before. He approached the reception and spoke to the receptionist who he knew from previous visits. The complainant, a sex worker, joined the offender at the counter. The complainant and the offender had a conversation. The offender also spoke to the receptionist. The CCTV shows him in what appears to be an ebullient mood. It also shows him getting close to and touching the complainant, including lifting up the complainant’s skirt and touching the complainant’s bottom. Although this was not before the jury, it was admitted for the purposes of sentencing that the offender was under the influence of methamphetamine at the time. That is consistent with his apparent mood and some of the unusual aspects of his conduct which will be described.

3․The offender booked time with the complainant. There was conflicting evidence at the hearing as to precisely what he had booked. Some of the evidence indicated that he had made a one-hour booking with the complainant. Some evidence indicated that he had made a half-hour booking with the complainant in anticipation of having another half hour with another sex worker. In any event, the payment that he made was for the “standard” service, namely a massage, oral sex being performed upon him using a condom and penile-vaginal sexual intercourse with a condom. The jury’s verdict is inconsistent with his evidence that he had paid for “choking” as an “extra”.

4․He and the complainant went into one of the rooms in the premises identified as the “Chanel” room. The usual practice at that point would be for the sex worker to do a “health check” on the client. This would involve the sex worker examining the genitals of the client in order to detect any signs that the client had a sexually transmitted disease. The offender declined to participate in the health check, asserting that he had been there before and that there was nothing wrong with his penis. He said something along the lines of 'I've been here plenty of times. There's nothing wrong with my penis, you can ask [the receptionist].”

5․The complainant indicated to him that he was free to leave if he did not want to have a health check. He left the room and went back to the reception where he spoke to the receptionist. While there, he pulled out his penis as if to show the receptionist that he was “clean”. This was very odd behaviour, as there were other prospective clients in the vicinity of the reception area, as well as the offender’s acquaintance who had accompanied him to the brothel, who observed this occurring. The receptionist gently guided the offender back to the room and encouraged him to “have a nice time”. Up until this point, the chronology of events was relatively uncontroversial, as what occurred was shown on CCTV recordings which were put into evidence.

6․The jury’s verdict involves concluding beyond reasonable doubt that upon returning to the room, the offender put his hand around the neck of the complainant and choked the complainant, without her consent. That was done with the intention of having sexual intercourse, notwithstanding that the health check had not been completed (count 1 – inflicting actual bodily harm with intent to engage in sexual intercourse). The offender also penetrated the complainant’s vagina with his fingers without consent (count 3 – sexual intercourse without consent). At some point the offender also held open the complainant’s mouth and spat into it (count 7 - assault). Although the chronology of events given by the complainant was not clear, at some point, a condom was placed on the offender’s penis and the complainant sucked his penis. However, at a point where penile-vaginal sexual intercourse may otherwise have occurred, the offender refused to wear a condom and the complainant left the room. The complainant told the receptionist that he would not wear a condom and retreated to a change room. The offender also exited the room naked and approached the reception. Subsequently the complainant made statements to the receptionist, the owner of the brothel and police identifying what had occurred. Bruising around the complainant’s neck was visible. Some other minor bruising and abrasions were recorded by a doctor at the Canberra Hospital.

7․The jury’s verdicts on counts 1 and 3 are appropriately reconciled with the evidence on the basis that whatever the offender’s state of mind was at the point where he entered the Chanel room, he knew at the point of choking and digital penetration, as a result of the complainant’s physical resistance, that she did not consent to those acts yet persisted with them. So far as the spitting the subject of count 7 was concerned, this appears to have occurred on the pharmacologically misguided belief that spitting into the complainant’s mouth might lead to her ingesting methamphetamine to an extent that she may be willing to participate in the acts that the offender wished her to participate in.

Objective seriousness

8․So far as the assault was concerned, it involved choking, which is a serious form of assault. The victim could still breathe. It was sufficient to result in bruising to her neck. The complainant was gasping for air and was struggling. The complainant was obviously vulnerable, being a sex worker exposed to the intimate conduct of strangers. No weapon was used and there was no premeditation. It is at the low end of the mid‑range of objective seriousness for this offence.

9․The sexual intercourse without consent involved penetration of the victim’s vagina on multiple occasions. He put his hand in quite aggressively and repetitively. She struggled and tried to get away from him, but he was quite strong and she could barely move. The victim was obviously in a vulnerable position. It is within the broad scope of mid-range of objective seriousness for this offence.

10․The spitting which constituted the assault was not done in order to humiliate or degrade the victim. Rather it appears to have been done on the pharmacologically misguided understanding referred to earlier. The complainant described the offender as having pinned her down, opened her mouth and then spat into it. She described it as “gross” and said she had “never seen so much spit in my life”.  It is in the mid-range of objective seriousness for this offence.

Subjective circumstances

11․The subjective circumstances of the offender are outlined in a pre-sentence report, a report of Dr Douglas Boer and letters from the offender’s brother and sister. His sister also gave some brief oral evidence about what would happen if he was released from custody.

12․The offender is 38 years old. He was born and raised in Belmore in New South Wales. He is one of four children of his parents. His father suffered from an undiagnosed mental illness, bipolar disorder, for many years. His father died in March 2022. Prior to being remanded in custody the offender played a significant role in looking after his father whose health was declining.

13․The offender retains positive and supportive relationships with his mother and siblings. He has no children or dependents. He has been in and on-again off-again relationship for approximately 10 years. He has lived at his mother’s house for most of his life. He intends to return there upon his release from custody.

14․He left the formal education system in Year 9. He has no post school qualifications. He has worked in the construction industry and run a tobacconist. Prior to incarceration he was employed by his brother’s bricklaying company. This employment is available to him upon his release from custody.

15․He has a history of illicit drug use, starting with cannabis from the age of 13, then cocaine from the age of 15 and methamphetamine from 20 years of age. Methamphetamine use was ongoing. Prior to entering custody, he had ceased taking his mental health medication and instead relied upon methamphetamine. He had a period in a residential treatment program in 2015 or 2016, but as a result of the program ceasing, he did not complete it. He indicated a willingness to address his ongoing difficulties with drugs.

16․So far as his mental health is concerned, he reported that he was diagnosed with bipolar disorder in 2012 and had been prescribed quetiapine to treat his mental health. He reported that he ceased taking this medication six months prior to entering custody and had been self-medicating with methamphetamine. While in custody he has undergone multiple assessments by psychiatrists who found that there was no clinical indication for the prescription of quetiapine. The report of Dr Boer indicates that he had been diagnosed with bipolar affective disorder, most recently by a psychiatrist in March 2018. It was this diagnosis which led to the use of the antipsychotic quetiapine. Dr Boer diagnosed him as suffering with Bipolar 1 Disorder, currently depressed, with moderate severity. He also diagnosed Stimulant Use Disorder, in remission and Generalised Anxiety Disorder. The reasons for that diagnosis and it being different to the earlier diagnosis of bipolar affective disorder are not clear. There is obviously some tension between the absence of any diagnosis notwithstanding multiple examinations in custody and the diagnosis of Dr Boer. Having regard to the 2018 diagnosis, the family history and the long-term use of methamphetamine it is likely that he does have an underlying mental health condition which is complicated by and has an effect on his use of methamphetamine.

17․The authors of the pre-sentence report indicated that he expressed no insight into his behaviour and was assessed using the Static-99R assessment tool as being “Well Above Average Risk” of sexual recidivism. Dr Boer identified the offender’s risk of recidivism in general as being high but his risk for sex offending as being less than that. In my view, his risk of recidivism is closely associated with his underlying mental health condition and his use of illicit substances.

18․He was assessed by the author of the pre-sentence report as being unsuitable for community service work or an intensive correction order.

Criminal history

19․The offender has a criminal history. In the ACT that is limited to possession of cannabis and a failure to appear after a bail undertaking. In New South Wales he has a history commencing in 2004. It includes a range of offences relating to drugs, knives, driving, assault and damaging property. He has had a number of suspended sentences of imprisonment. While the offending is not particularly serious, it has occurred on a regular basis over a long period. His criminal history does not include any prior sex offending.

Time in custody

20․The offender has spent the following periods in custody solely attributable to the present offending:

(a)12 September 2020 to 3 March 2021: 173 days;

(b)29 April 2022 to 3 October 2022: 158 days; and

(c)13 October 2022 to 5 June 2023: 236 days.

21․The total is 567 days (18 months and 21 days). Taking this time in custody into account through backdating his sentence gives a backdate date of 16 November 2021.

Consideration

22․Each of the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT) are relevant. So far as prospects of rehabilitation are concerned, having regard to the offender’s history, this must be considered to be guarded.

23․The offending in the present case is the first sex offending engaged in by the offender. Although the picture of his mental health is somewhat mixed, his history of offending and drug use is likely to be associated with his mental health condition. His use of methamphetamine appears to be associated with his mental health condition. His behaviour on the evening in question was consistent with intoxication with methamphetamine.

24․It is not appropriate that the sentence on count 1 be wholly concurrent with the sentence on count 3. While the events in the Chanel room all took place within a 13‑minute period and the offences are closely related, it is a case where there needs to be a degree of accumulation to reflect the separate moral culpability and harm done.

25․If the minimum period required to do justice in the circumstances of the case extended beyond the time already spent in custody, then there would be a reasonable basis for saying that the matter should be dealt with by way of a non-parole period rather than a partially suspended sentence. However, three factors indicate that it is more appropriate to address the matter by imposition of a partially suspended sentence:

(a)first, given that the offender has spent more than 18 months in custody, it is not a case where the minimum period required to be spent in full-time detention extends beyond today;

(b)second, if the matter was dealt with by way of a non-parole period then this would delay his release by a significant period, most likely in excess of two months; and

(c)third, the evidence is that his behaviour in custody does not tell against his release from full-time detention and he has available to him suitable accommodation and support upon release.

26․Therefore, I will deal with the matter by way of partially suspended sentence of imprisonment which will allow his release today, subject to a good behaviour order with a period of supervision in the community. The aggregate sentence of imprisonment will be two years and six months. The period spent in custody is 62.5 percent of this head sentence. This is within the range that would usually be adopted in relation to non-parole periods and is an appropriate period to do justice in the circumstances of the present case.

27․There is a transfer charge of common assault (CC2020/12150), the substance of which is reflected in count 7 on the indictment which the parties agree should be dismissed in order to make it clear that it has been finalised.

Orders

28․The orders of the Court are:

1.On the charge of sexual intercourse without consent (CC2020/10879), the offender is convicted and sentenced to imprisonment for 14 months commencing on 16 November 2021 and ending on 15 January 2023.

2.On the charge of inflicting actual bodily harm with intent to engage in sexual intercourse (CC2020/10880), the offender is convicted and sentenced to imprisonment for 20 months commencing on 16 August 2022 and ending on 15 April 2024.

3.On the charge of common assault (SCCAN2021/34) the offender is convicted and sentenced to two months imprisonment commencing on 16 March 2024 and ending on 15 May 2024.

4.The sentences are to be suspended today after the offender has spent 18 months and 22 days in custody upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 with the additional condition that for the balance of the term of the sentence or such shorter period as determined by the Director-General he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person.

5.Charge CC2020/12150 is dismissed.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop

Associate:

Date: 30 June 2023