R v Ahmed Abdel Rahman Attia

[2005] NSWDC 5

CITATION:	R v Ahmed Abdel Rahman ATTIA [2005] NSWDC 5
HEARING DATE(S):	19/08/2005
JUDGMENT DATE:	2 September 2005
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment . A non parole period of 3 years and a total term of 5 years
CATCHWORDS:	Criminal law - Sentence - Assault - Foreseeability - Sexual intercourse without consent - Detain for advantage - Mental illness - Conditional liberty
PARTIES:	Crown Ahmed Abdel Rahman Attia
FILE NUMBER(S):	04/11/1349
COUNSEL:	M. Barr (Crown)
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Ahmed Attia has pleaded guilty to one offence of having sexual intercourse with a woman without her consent. When sentencing him for that offence he asks that I take into account two further matters.

2 The first is related directly to the offence on the indictment, it is an offence of detaining the complainant for advantage, the advantage being of course to have sexual intercourse with her.

3 The other offence on the Form 1 is an offence which was committed after the offender was arrested. It was an offence of assaulting a Correctional Services Officer in the execution of his duty, thereby occasioning actual bodily harm to him. I will take those matters into account in deciding the appropriate sentence to impose on Mr Attia as indicating a greater need for retribution and personal deterrence than would otherwise be the case.

4 While dealing with the Form 1 matters I should say this: as well as tendering a statement of, J the Correctional Services Officer who was the victim of the assault occasion actual bodily harm, the Crown tendered a victim impact statement from him.

5 During the assault J suffered some physical injuries. These were primarily bruising to his groin, his forehead and his back as well as a bite mark to his left forehead. While satisfying the description of actual bodily harm they were, in the grand scheme of things, not terribly serious physical injuries. That is not at all to suggest that they should be regarded as minor, particular in the context in which the assault occurred, but the direct physical injuries could not have been expected to have led to the psychiatric and psychological illness which J suffered as a consequence of his assault. In the criminal law what is foreseeable generally marks the limits of what an offender is held responsible for. There are some exceptions, but ‘foreseeability’ is generally regarded as determining when particular consequence are attributed to an offender in the sense that he is punished for them. The physical and psychiatric illnesses which J suffered were not foreseeable. It is inappropriate therefore to take them into account in formulating the extra punishment which should be imposed on him for the offence on the indictment.

6 I have concentrated thus far on the less important aspects of the sentencing exercise I have before me. Let me turn therefore to the offence on the indictment.

7 On the evening of 26 November 2003 the complainant went out with her de facto husband. He went home alone, whilst she stayed on enjoying herself, having an evening out. When she went to go home she discovered that it was impossible to get a taxi. She was approached by the offender, and he persuaded her that he would drive her home. He did eventually drive her home but only after he had raped her.

8 The complainant began to have concerns about the offender because of the way he was driving. It became clear to her that he was not going to take her directly home, instead he took her to a paddock. As he was driving there the complainant was pleading with him to take her home but he ignored her requests. Once he got there he began to sexually assault the complainant. He did so in a variety of unwelcome ways. He persisted despite the fact that the complainant was crying, making it clear to him that she did not want him to do what he was doing. He removed his clothing and at least part of hers. The offender used force to overcome the victim and although at one stage suggested he would use a condom when he had sexual intercourse with her, he proceeded to have penile, vaginal intercourse with her without using a condom. He ejaculated.

9 After he had finished he took her home. She made an immediate complaint to her husband. The police were called, and she gave a description of the car in which she had been sexually assaulted. By chance police noticed that car because the offender had had a car accident shortly after dropping off the complainant. He was taken into custody and has remained there ever since.

10 Sexual intercourse without consent is rightfully regarded as an extreme form of violence. The community expects that women are entitled to go out drinking and enjoying themselves without fear that strangers will approach them, persuade them to get into their cars and rape them. The consequences for the complainant were entirely foreseeable. A victim impact statement was tendered by the Crown, but I do not need to go into the details at all. As I have said the complainant suffered exactly what one would have expected her to suffer after being subject to such a violent and degrading experience.

11 The maximum penalty for this offence is 14 years imprisonment and it carries with it a standard non parole period of 7 years. Of course because there was a plea of guilty entered in this case the standard non parole period is not directly applicable. I will however use it as a guide.

12 In light of the objective seriousness of offences of sexual intercourse without consent and the maximum penalty and the standard non parole period of 7 years I confess to being somewhat surprised at the sentencing statistics which the Judicial Commission provides. True it is that for matters after 1 February 2003 when the standard non parole period came into force there are not terribly many cases to look at, but even so it is to be noted that in no case did any sentence, I mean total sentence, exceed the non parole period.

13 One possible explanation for this concerns the various circumstances in which an offence of sexual intercourse without consent can be committed, for example that section covers various forms of sexual intercourse as Ms Manuell accepted. In this case the form of sexual intercourse was most serious penile/vaginal intercourse without a condom and in circumstances where the offender ejaculated. We do not know the objective facts of the matters referred to in the Judicial Commission’s statistics, nor do we know the subjective matters either. I will certainly have regard to these statistics but recognise their limited utility where we simply do not know the objective or subjective features of those cases.

14 This offence was committed at the time the offender was on a bond, that is an aggravating factor of course.

15 The offender was born in Egypt, he grew up in impoverished conditions, his parents were frequently fighting, he had an unhappy childhood and violence was commonplace. He told his wife recently that during his time in Egypt he was sexually assaulted. Whilst in Egypt he met an Australian woman then on holiday. They fell in love and married. At one stage she lived with the offender and his family and saw for herself the poverty in which the offender had been brought up and the erratic behaviour of members of his family.

16 The offender moved to Australia to be with his wife in July 2002. In an affidavit tendered to me she says that within a couple of months of arriving in Australia things started to go downhill as far as the offender was concerned. He also began to behave erratically and was taking drugs. It was in these circumstances that he assaulted her and was placed on a bond and it was that bond that he was on when he committed the offence on the indictment.

17 I will turn now to what Ms Manuell said was the most important feature of the case she presented on behalf of her client. It concerns the fact that he is significantly mentally ill. Initially this matter was listed in this court for the purpose of determining whether he was fit to be tried. However, after he had been receiving treatment whilst in custody his mental condition had improved to the stage where he was fit to be tried. I made a finding to that effect and the offender immediately pleaded guilty. So although he does suffer from mental illness he is, with the help of appropriate psychiatric treatment, heading towards remission. He suffers from schizophrenia. He had suffered from that illness for 10 years but it was undiagnosed and untreated until he was arrested on this matter. As I have said, since then he has been medicated appropriately and developed insight into his mental illness.

18 At the time of the offence he was not only mentally ill but taking illegal drugs. It was in that state, that is a combination of being a mentally ill man on drugs, that he committed this offence.

19 It is said that he is remorseful, now that he is better, for what he has done. I accept that he is remorseful. There are indications to that effect in some of the material before me, in particular the latest report of Doctor Westmore. Also I take into account the plea of guilty as indicating the offender’s remorse. This was far from an open and shut case. There was at least a chance that the offender may have been acquitted had he decided to plead not guilty and maintain that the sexual intercourse which occurred was consensual. This is not a case where the plea of guilty says nothing about remorse because this is not a case where the evidence against him was overwhelming.

20 The fact that the offender was mentally ill at the time has multiple relevance. Even though his condition was not independent of the fact that he used illegal drugs I am satisfied that his mental illness was a highly significant factor in leading him to commit this most serious offence. For this reason general deterrence will play less of a part in formulating the appropriate sentence. Because the offender’s mental condition has improved substantially and will continue to do so, his illness is also relevant to his prospects for rehabilitation and whether there needs to be any special component of personal deterrence. He is now responding to the anti psychotic medication and his mental state is vastly improved.

21 The offender pleaded guilty at the first available opportunity. If I were to consider this matter strictly on the basis of utilitarian benefit, I would have to note that matters progressed in this court some way before the plea was entered but this was entirely due to the fact that the offender was mentally ill and there were concerns for his ability to stand trial. As soon as he became fit, he pleaded guilty. He pleaded guilty on the first available opportunity. The benefits of that plea extend not only to the Criminal Justice System but in particular to the victim in this matter who has avoided what would no doubt have been an unpleasant cross examination. In light of the utilitarian value of the plea, I will discount the sentence I would otherwise have imposed by 25 per cent.

22 I have placed great weight on the offender’s mental condition, both at the time of committing the offence and now. However, that is not to say that the offender is undeserving of punishment, far from it. His mental condition contributed to the commission of this offence, as did his use of illegal drugs, but nevertheless the offender still bears clear moral responsibility for what he did. I wish to make it clear I do not consider he bears full moral responsibility, but the matter is not simply to be excused because of his mental illness. General deterrence must still play a part in the sentence I will shortly announce. It is of reduced significance but it is not of no significance at all. Similarly personal deterrence must still play a part.

23 Lest it be thought that I have overlooked any matter in s.21A I will emphasise the following:

24 The offender’s record is not an aggravating circumstance. The injury caused by his offence was substantial but that is not to say it is an aggravating feature of this offence. In accordance with the current view of the Court of Criminal Appeal, it is not an aggravating circumstance of an offence if someone suffers merely foreseeable harm. So I will not take the harm that the victim suffered into account as an aggravating feature, but I will take it into account as I am required to do.

25 The offence was committed whilst the offender was on conditional liberty and it involved a series of criminal acts. That series of criminal acts of course being the various forms of assault of a sexual nature which led up to the particular act which is the subject of the charge on the indictment. I have given some thought as to whether this offence was planned or not. There are indications both ways. The offender no doubt used his persuasive powers to get the complainant into his car. That tends to suggest, in the light of what happened, that he knew what he was going to do. On the other hand as Ms Manuell points out, he actually showed the complainant his driver’s licence, which was one of the matters that led to his arrest later. In the end I cannot be satisfied beyond reasonable doubt that it was planned, but nor can I be satisfied on the balance of probabilities that it was not.

26 As I have said the offender’s record is not of any great significance, especially in circumstances where the previous offence was also committed in the context of a mentally ill man. I cannot say that he is unlikely to re-offend or has good prospects of rehabilitation. There are prospects of rehabilitation but whether they can be described as good is another matter. As I have said I find that he has shown remorse and pleaded guilty.

27 Matters such as this where a serious offence was committed with serious consequences for the victim of it by a person whose moral culpability is lessened by the fact that he was mentally ill at the time are difficult sentencing exercises. Ultimately it becomes a matter of judgment, after considering the principles that I have outlined, in determining what the appropriate sentence is. Ms Manuell noted that the offender had been in custody since 26 November 2003 and suggested that I impose a sentence which would have the effect of the offender being released to parole in a short time. The sentence I will impose I consider appropriate to the objective gravity of the offence and the subjective features of the offender.

28 The offender is sentenced to imprisonment. I set a non parole period of 3 years to commence on 26 November 2003 and a total term of 5 years. The non parole period will expire on 25 November 2006 on which day the offender is eligible to be released to parole. I have taken into account the matters on the Form 1 in formulating that sentence. I note that the matters on the 166 certificate were withdrawn.

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