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…