R v Abuuh

[2017] ACTSC 375

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Abuuh

Citation:

[2017] ACTSC 375

Hearing Date:

12 December 2017

DecisionDate:

12 December 2017

Before:

Elkaim J

Decision:

See [26]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual assault in the third degree – aggravated robbery – sexual intercourse without consent – attempted sexual intercourse without consent in company.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v Al Abbasi [2017] ACTSC 239

Parties:

The Queen (Crown)

Rashid Mohamud Abuuh (Offender)

Representation:

Counsel

Ms S Gul (Crown)

Mr A Fraser (Offender)

Solicitors

Office of the ACT Director of Public Prosecutions (Crown)

Armstrong Legal (Offender)

File Number:

SCC 23 of 2017

ELKAIM J:

1. On 1 September 2017, Mr Abuuh was found guilty by a jury of the following offences:

(a)Sexual assault in the third degree;

(b)Aggravated robbery;

(c)Sexual intercourse without consent, in company; and

(d)Attempted sexual intercourse without consent, in company.

1. The respective maximum penalties for these offences are:

(a)Sexual assault in the third degree: 14 years imprisonment

(b)Aggravated robbery: a fine of $375,000 and/or 25 years imprisonment

(c)Sexual intercourse without consent, in company: 14 years imprisonment

(d)Attempted sexual intercourse without consent, in company: 14 years imprisonment

1. The offences committed by Rashid Abuuh, Mohammed Al Abbasi and Khaled (Ahmed)  Al Abbasi involved the robbery and rape of two sex workers, LU and XK. The offender gave evidence at the trial. He advanced a version of events consistent with him being coerced. He acknowledged that one of the sex workers, LU, had performed oral sex on him, but denied that his actions had been voluntary. He denied engaging in penile-vaginal sex with LU or attempting to do so.

1. The offender’s account defied reasonable belief and was plainly rejected by the jury.

1. The offender was born in 1993 in Somalia. He and his family felt the effects of the civil unrest in that country. They moved to Saudi Arabia when the offender was approximately six years old. Soon thereafter, the offender’s father died. As the only male in the family, the offender took on a position of some responsibility, notwithstanding his tender years. After spending some time in Saudi Arabia, the offender was arrested as an illegal immigrant and placed in an adult prison. His mother and sisters were also arrested and placed in a female prison. After some time, the family was sent back to Somalia, where they reunited and made their way to Australia. The offender was then 16 years of age.

1. The offender has a criminal record which includes a number of driving offences, some of which are quite serious. He has no previous convictions for any offence akin to the present matters.  

1. The offender did not complete high school. He has commenced, but not completed, a course at the Canberra Institute of Technology. He has been an active participant in the Muslim community in Canberra and has completed volunteer work for his Mosque.

1. The offender is now an Australian citizen so he will not be deported at the end of his sentence.

1. The offender has been in custody in relation to these offences for 122 days. Accordingly, the sentences that I impose will commence on 12 August 2017.

1. The offence of sexual intercourse without consent is always serious. The fact that these offences were committed against sex workers does not lessen their severity. The victims were entitled to carry on their profession in safety and free from fear of molestation, rape and robbery by men masquerading as customers.

1. I assess these offences as being objectively serious.

1. The sentencing process requires an examination of the purposes and principles of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it tells the court that an offender should not be imprisoned unless there is no other alternative. There is no alternative in this case. This point is conceded by the offender’s legal representatives.

1. The offender is still a young person and one would hope that he has prospects of rehabilitation and the capacity to contribute to the community. His community is made up of many persons who have faced trauma and suffered in their home country and who would benefit from support and assistance.

1. There is another very important element that needs to be factored in to the sentencing of this offender. As noted above, the offences were committed in the company of Khaled Al Abbasi and Mohammed Al Abbasi. These two brothers were sentenced by Mossop J on 22 August 2017 (R v Al Abbasi [2017] ACTSC 239). I adopt his Honour’s description of the conduct, including his statement that the offences were “disgraceful”. I also endorse his Honour’s concentration on deterrence, punishment and denunciation.

1. I was urged by the Crown to apply principles of parity. In my view, this approach is obviously correct but the question arises as to whether the parity should be with the sentence imposed on Khaled Al Abbasi or on Mohammed Al Abbasi. I think Khaled Al Abbasi was the most culpable of the three offenders and, as is reflected in the approach taken by Mossop J, his criminality was deserving of greater punishment.

1. I think that this offender should be treated in generally the same manner as Mohammed Al Abbasi. It is difficult to achieve precise parity because of other unrelated matters that affected the sentencing of Mr Al Abbasi. Another important distinction is that Mr Al Abbasi pleaded guilty and was given a 15% discount in consideration of his plea.

1. I have decided to, as far as possible, treat this offender in the same way as Mohammed Al Abbasi, but with some adjustment for the following reasons.   

1. Firstly, there are the extreme subjective circumstances of the offender’s upbringing. They may not reach the threshold in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, but I do think that they can be taken into account.

1. Secondly, one of the offences of sexual intercourse was an attempt. Although this carries the same punishment as the completed offence, I take into account what was said by counsel for the offender, to the effect that the suffering experienced by the victim would have been less and over a shorter period.

1. Thirdly, I think that although there is similarity between the activities of the offender and Mohammed Al Abbasi, the latter was more actively involved in the crimes. In addition, I note that Mohammed Al Abbasi faced an extra charge such that his overall criminality, as taken into account by Mossop J, was greater.

1. All of the offences occurred as part of a single criminal enterprise. I think the sentences should contain a degree of both concurrency and accumulation. The victims of the offences, and the public, are entitled to see that the offender is punished for each offence he has committed.

1. It is difficult to achieve the same degree of accumulation and concurrency as applied by Mossop J. However, I think it is important to impose a head sentence that is generally on par with that given to Mohammed Al Abbasi, but taking into account the 15% discount that was given to Mr Al Abbasi for his guilty plea. Counsel calculated the appropriate sentence, after the discount, as being about three years and five and a half months.

1. Having regard to the matters raised above, I think three years and eight months is the appropriate head sentence.

1. I will set a non-parole period of two years and two months.

1. Finally, I should deal with a submission made by the offender’s counsel to the effect that I should consider an Intensive Corrections Order. I disagree. In my view, the seriousness of these offences makes full-time imprisonment an absolute necessity.

1. I make the following orders:

(a)In respect of count 1, sexual assault in the third degree (CC 2016/9874), the offender is sentenced to 8 months and 15 days, commencing on 12 August 2017 and ending on 26 April 2018.

(b)In respect of count 2, robbery in company (CC 2016/9876), the offender is sentenced to 10 months and 5 days, commencing on 12 December 2017 and ending on 16 October 2018.

(c)In respect of count 3, sexual intercourse without consent, in company (CC 2016/9873), the offender is sentenced to 1 year 8 months and 12 days, commencing on 12 April 2018 and ending on 23 December 2019.

(d)In respect of count 4, attempted sexual intercourse without consent, in company (CC 2016/9875), the offender is sentenced to 1 year 11 months and 21 days, commencing on 22 April 2019 and ending on 11 April 2021.

(e)The head sentence is 3 years and 8 months commencing on 12 August 2017 and ending on 11 April 2021.

(f)I impose a non-parole period of 2 years and 2 months commencing on 12 August 2017 and ending on 11 October 2019.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 12 December 2017