R v Agan

[2020] NSWDC 85

District Court

New South Wales

Medium Neutral Citation:	R v Agan [2020] NSWDC 85
Hearing dates:	13 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of six years, with a non-parole period of three years, 8 months: at [25].
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim has cognitive impairment SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Plea of guilty — Rehabilitation — Not part of a planned or organised criminal activity SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — Multiple offences — Parole period — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Hardship — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Thomas [2007] NSWCCA 269 Panchal v R; R v Panchal [2014] NSWCCA 275 Tindall v R [2019] NSWCCA 136
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Soloman Agan (Offender)
Representation:	Mr Keay (Crown Prosecutor)   Mr Winch (Counsel for the offender)
File Number(s):	2018/98525
Publication restriction:	STATUTORY NON PUBLICATION APPLIESSection 578A Crimes Act 1900 (any matter that may identify the complainant(s))

Judgment

1. Soloman Agan was born in December 1988 during a protracted civil war in his homeland of Sudan. His parents were both killed in that war. He had 11 or 12 siblings with only two of them surviving the war. He had no formal schooling. He was conscripted into the South Sudanese army as a child solider when he was seven years of age and he remained in the army until his early teens. He suffered a bullet wound while fighting as a child. He spent six months in a Kenyan hospital, eventually walking with crutches. He was then taken to an Ethiopian refugee camp where he lived from a2000 to 2006. He came to Australia as a United Nations refugee in 2007. He has no relatives in Australia. He has studied English and his command of English has improved over the years with support from the government and immigration authorities.

2. It is against this tragic background, as described by Mr Winch, that Agan stands for sentence today for three offences of aggravated sexual assault, the circumstance of aggravation being that the victim had a cognitive impairment contrary to s 61J(1) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of ten years. These penalties are indications of the serious nature of these offences.

3. I must take into account all the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which include denunciation, punishment, making him accountable for his actions, but also promoting his rehabilitation.