R v Aslan

[2022] NSWDC 741

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Aslan [2022] NSWDC 741

Hearing dates:

Trial 1 December 2020 to 4 January 2021
Sentence: 1 July 2022

Decision date:

11 July 2022

Jurisdiction:

Criminal

Before:

KING SC DCJ

Decision:

Convicted on each count.

Indicative sentences:

Count 1: 8 years’ imprisonment with a NPP of 6 years

Count 2: 8 years’ imprisonment with a NPP of 6 years

Count 3: 8 years’ imprisonment with a NPP of 6 years

Aggregate sentence:

Sentenced to a total term of imprisonment for 12 years comprising a NPP of 9 years to commence on 4 January 2021 and expiring on 3 January 2030 upon which date he will become eligible for parole, and a balance of term of 3 years to commence on 4 January 2030 and to expire on 3 January 2033.

Standard NPP not applied to account for harshness of conditions of imprisonment during COVID-19, & in his election of protective custody, and the offender’s limited links with the community in Australia as well as his limited ability to have contact with his family in Turkey.

Catchwords:

CRIMINAL – Sentence – 3 offences of sexual intercourse without consent, knowing the complainants were not consenting – drunk/drugged complainants – “intercourse with a complainant who cannot consent is in itself an act of violence” – high emotional trauma and psychological impact in such circumstances - similarity in approach and method used by offender – use of online “Couchsurfing” travel application, “preloading” with large amounts of alcohol, taking each to Hyde Park – midrange of objective seriousness – Victim Impact Statements - SNPPs – subjective matters – no evidence of remorse/contrition, no prospect of rehabilitation in those circumstances - lengthy delays in sentencing due to impact of Covid, availability of counsel, difficulty of obtaining reports etc

Legislation Cited:

Crimes Act1900

Category:

Sentence

Parties:

Regina
ASLAN, Berat

Representation:

Counsel:
DEF: Mr L Katsinas
Solicitors:
CR: Ms A Weir, Mr D Lawless
DEF: Mr E Demir, 360 Legal

File Number(s):

2019/00049744

Publication restriction:

NPO in respect of the names of the complainants and anything tending to identify them.

JUDGMENT

SENTENCE

1. HIS HONOUR: Berat Aslan appears for sentence in respect of three offences of sexual intercourse without consent, knowing that the individual complainant was not consenting. It was commenced as a trial before me on 1 December 2020 and occupied approximately 15 days. The jury were out on verdict on 23 December, and they returned their verdict after a Christmas break on 4 January 2021.

2. Since that time, there have been unfortunately a number of dates on which the matter has not been able to proceed. After the verdict, the first date before me was 19 February 2021, when the legal representatives of Mr Aslan from the trial sought leave to withdraw because their instructions had been withdrawn. Such leave was granted.

3. Thereafter, there were a number of attempts to complete the matter which failed for various reasons, in particular the difficulty of the offender in obtaining new representation, the impact of COVID-19 on his ability to obtain new representation, and the ability of his new representatives to obtain instructions, and also in relation to being able to obtain psychological or psychiatric reports in the intervening period due to COVID-19.

4. The further dates were 18 March 2021, 25 June 2021, 10 September 2021, 5 October 2021, 22 October 2021, 10 December 2021 and 25 February 2022. Finally, the sentencing submissions and evidence were completed on 1 July 2022 and the matter is before me today to complete the sentence.

5. Counts 1 and 2 on the indictment, each being an offence contrary to s 61I of the Crimes Act1900, related to a complainant, NC. Count 1, the first allegation of penile‑vaginal intercourse, occurred in Hyde Park, and Count 2 related to a second allegation of penile-vaginal intercourse in the accused's accommodation at Enmore.

6. Count 3 related to a different complainant, AW. It occurred on 4 January 2021 in the accused's accommodation at Cremorne and was also contrary to s 61I.

7. The jury returned verdicts of guilty in respect of each of the three counts on the indictment on 4 January 2021. The maximum penalty provided for each of the offences is 14 years' imprisonment, and there is a relevant standard non-parole period of seven years in each case. The jury having returned verdicts of guilty on 4 January 2021, the offender has been in custody since that date until today.

8. A brief outline of the Crown case is as follows, and what I accept beyond reasonable doubt from the jury finding of the offender's guilt in each case.

9. As to NC, Counts 1 and 2, the offender met NC through the online application known as Couchsurfing, she having recently come to Australia from the United Kingdom and wanting to broaden her social circle by finding like-minded persons through that application. They first met on 15 January 2017 when they went to Coogee Beach, and while at the beach she informed him that she was sexually interested in women, not men, although she did not rule men out.

10. She also informed him that she already had a partner, and that she regarded herself as being in an exclusive relationship with that female. She also indicated when asked by him that he was not her type. She had never communicated to him any romantic or sexual interest in him. After the beach he invited her to accompany him to a live venue in the city, which eventually she accepted, as he said they would be meeting certain of his friends there.

11. To avoid the high costs of drinks at the particular venue they were to attend, they purchased a bottle of gin and presumably tonic and attended at Hyde Park where they engaged in what is popularly known as “preloading”, that is, consuming the alcohol they had bought in order to avoid the high cost of drinks at the venue. They preloaded in Hyde Park and then went to the entertainment venue. While there, he purchased and provided to her at least one drink from the bar. He endeavoured at one stage to kiss her which she physically resisted.

12. After having consumed the drink, she later felt unwell and attended the toilets to vomit. She informed him she was unwell and had been sick and wanted to go home before eventually passing out. They had returned to Hyde Park, and she was vomiting in Hyde Park. She was unconscious or asleep when the offender engaged in penile‑vaginal intercourse with her, and she had had no opportunity to consent. She was conscious at least in part during this occurring. They left Hyde Park, but he did not take her to her accommodation but rather to his own. She went to sleep on a convertible sofa.

13. She woke up the next day, at which time she could feel his penis against her back before he turned her onto her back and climbed on top of her before trying to kiss her again and to have penile-vaginal sexual intercourse with her while she was trying to push him off and saying "Stop". She tried to keep her legs together saying "Don't, get off me" while he endeavoured to force her legs apart with his hand. He responded by saying "What's the point? We already fucked." He persisted as she resisted verbally and physically before he eventually achieved penile-vaginal intercourse and subsequently ejaculated under her leg. NC left his premises, reported the matter to a flatmate, attended on a doctor, and eventually reported the matter to police, indicating that she did not wish it to be pursued, although she would be prepared to come forward in the future if there were any like allegations made against the offender.

14. The complainant AW, after finishing her schooling in Germany, attended in Newcastle to work as a nanny for a friend of the family. She also first had contact with the offender through the Couchsurfing application, and each of NC and AW had contact with him at various times using other internet applications, such as WhatsApp and iMessage. After being in contact with the offender for a period of time through those apps, he continued to invite her to travel from Newcastle to Sydney to stay with him, couch surfing, and to some extent my interpretation of the text messages is that he applied some pressure for her to take up his offer.

15. Eventually, she did agree to come to Sydney, and he had offered to show her around Sydney. They first met in person at a bus stop in Neutral Bay Junction at about 6.30pm on 3 February 2019. In their previous messages she had informed him that she was in an existing relationship with her boyfriend who would be coming from Germany to travel with her. Again, the offender convinced her that they should preload before embarking on the tour of Sydney. Alcohol was purchased and they commenced to consume that at his residence. They consumed the alcohol, both at his residence and again at Hyde Park.

16. At Hyde Park, he kissed her on the lips, but she could not recall her response. Her memory of the evening, just like that of NC, had a number of blanks. However, the offender was aware that she was affected by alcohol, and they returned to his apartment by cab. She was unable to clearly recall returning to his apartment because she was drunk and not in control of herself. At no time had she indicated to him that she had any romantic or sexual interest in him. She retained only one image of him being over her and having penile-vaginal sexual intercourse with her, which she described as "really hard and fast".

17. I accept that she was unconscious or asleep as a result of the alcohol at the time of the penile-vaginal intercourse commencing, and she awoke in his bed at approximately 3am, and went to the bathroom and cried. She could not recall what she was wearing at that stage, but she took her sleeping clothes to the bathroom and dressed there. He came and sat with her and informed her that he had ejaculated in her and inquired whether she was using a contraceptive.

18. In relation to each of the three acts of penile intercourse with NC and AW, I accept beyond reasonable doubt that the offender was aware that they were not consenting to the sexual intercourse.

19. AW after leaving his premises went to Central Railway Station, where she was observed to be sitting on the ground, distressed and crying while talking to her mother in Germany by mobile phone. An elderly female Good Samaritan made observations of this and brought her to the attention of rail authorities, and the matter was reported to police. The offender was arrested on 14 February 2019, approximately 11 days after the offending against AW.

20. Submissions have been made by counsel for the offender on sentence that as there was no violence involved in Counts 1 and 3, they are less serious than Count 2, which involved physical struggle as NC resisted the act of intercourse. An act of intercourse while a complainant cannot respond because they are unconscious or asleep is in my view an act in itself of violence. In some ways for a complainant, it may be worse than an act which occurs in circumstances where they are aware of what is happening and able to resist. A complainant who is asleep or unconscious at the time of the act of intercourse will no doubt speculate about what was in particular done to her at any time that she then cannot remember and may cause a complainant to muse about whether the acts itself might have been video-recorded, and perhaps they would live on forever on internet pornography sites.

21. The emotional trauma and psychological impact of offending in those circumstances is very high. At least, a complainant who has been physically able to resist and is aware of what was happening may take comfort in the fact that they were able to physically resist what in fact happened, and for that reason the offending may have less impact.

22. The offender took advantage of two females who were vulnerable and isolated because they had travelled to Australia, away from their family and friends, and were in each case endeavouring to make their way in a new country, whether on a permanent basis or simply for a period before returning home.

23. In each case, there was significant similarity between the conduct of the offender, that is he used an online application in order to establish a connection to them. He persuaded them to join him in consuming a large amount of alcohol which had an adverse impact on each of them. In each case he took them to Hyde Park, although it would seem on the evidence that although he had induced AW to come to Sydney as he would show her Sydney, all she ever saw of Sydney was his accommodation, Hyde Park and the means of transport from one or other of those places, such as Central Railway.

24. It was submitted on behalf of the offender that these were spontaneous acts of sexual intercourse without consent. I do not accept that submission. In my view, considering the similarities between the conduct on each occasion, I accept that the purpose for the offender in commencing the relationship via Couchsurfing was an endeavour to achieve exactly what he did achieve on each occasion, that is, sexual intercourse without consent with each of them. In my view, each of the three acts of sexual intercourse in the circumstances falls within the mid-range of objective seriousness.

25. Provided to the Court is a Victim Impact Statement from each of NC and AW. Each of the Victim Impact Statements is an eloquent statement of the serious impacts that offending of this nature has on victims. The impact on each was of a relatively similar nature. It has been significant. At the time of her statement, NC had been receiving counselling for a period of approximately three years. AW had not been receiving counselling, particularly because of its lack of availability in Germany during the time of COVID but was about to commence obtaining counselling. Each of them found it extremely difficult to actually sit down and write about the impact that this offending had had on them.

26. AW spoke about the panic attacks that she started to have soon after the events. NC spoke about her difficulty over a period of four years in struggling to process what had happened, and how much she had suffered and lost, and her frustration at not knowing how to overcome the emotional, physical, mental and spiritual consequences that had impacted her. Each spoke about their change in character and how they related to the world, and in particular their difficulty in relating to males. Each spoke about their insecurity and the diminution in their self-confidence and self-assurance. The conduct had diminished their own view of their own self-worthiness.

27. It can only be hoped that with time, each will be able to put these events behind them and establish a comparatively normal life and relationship with others. The adverse impact that the offender's conduct has had on each of them is entirely consistent with the impact that such offending in the ordinary course has on victims of such offences. I have no doubt that the adverse psychological and emotional impacts on them will last for many years, if not for the entirety of their lives. It is for this reason that the legislation provides for stern penalties and a significant standard non-parole period.

28. I will be guided by the maximum penalty available of 14 years, as well as the standard non‑parole period of seven years, particularly in the circumstances where this was a defended matter, and each of the complainants was required to attend court and suffer the indignity of cross‑examination that suggested that it had either not happened or that they had consented. Neither of the complainants was shaken whatsoever in cross‑examination, and I accept that the jury accepted them as each being truthful and honest in their evidence to the extent that they could remember any of the events of which each gave evidence.

SUBJECTIVE MATTERS

29. In respect of subjective matters before the Court is the evidence given by Mr Aslan at trial and on sentence, together with the notes of Patrice Edmunds of her consultation with the offender on 27 January 2021 by AVL link, and her report of 17 February 2021 based on that consultation. In addition, her notes from a further consultation of 4 February 2021, and the report of Andrew Redden, senior psychologist, with Corrective Services, as to his assessment of the offender from material contained on the Parklea Correctional Centre files, together with the benefit of an interview with the offender on 5 February 2021.

30. Each of those persons was eventually challenged as to the accuracy, reliability or truthfulness of their reports in relation to their consultations with Mr Aslan. I note that although they are employees of the respective government departments involved in providing Sentence Assessment Reports or psychological reports on behalf of offenders, they have no axe to grind one way or the other, but to simply report their assessment of an individual offender in relation to whom a report has been requested for the benefit of the Court. They are not concerned in any way with trying to make people seem worse or better than they appear to them. Each was called to give evidence and be cross-examined on sentence, and I accept that the material contained in their reports was an accurate representation of their consultations and their view of the offender.

31. I note that in Ms Edmunds' second consultation of 4 February 2021, she recorded that during the interview the offender had said he “feels terrible for his offences”. As to NC, he admitted that the victim had told him not to kiss her in the club, and "Initially Mr Aslan had denied his role in the offence and claimed that he had not had sexual intercourse with the victim". Ms Edmunds challenged that assertion using the police facts, where it is stated that he had messaged the victim the day after the offence, asking if she had remembered having sexual intercourse with him, and that he had admitted to having sexual intercourse with both victims.

"Initially he stated that he was drunk and still knew what he was doing, then he verbalised that he was heavily intoxicated and couldn't remember the events of the night after drinking approximately three-quarters of a bottle of gin with the victim who he claims was also heavily intoxicated."

32. In respect of AW:

"He verbalised the victim had messaged him to go out in Sydney after they'd been talking for approximately one month. The night of the offence was the first night they had met. He said that he had tried to kiss the victim and she'd kissed him back and been very intoxicated after drinking approximately one bottle of wine and two vodka shots. He stated that the victim 'never refused me'. Mr Aslan claimed that he gets drunk when he mixes drinks, which he attributes to this offence."

33. As to “attitude/impact” she states:

"Mr Aslan was able to acknowledge his role in the offences and attributed the offending to his alcohol consumption and claimed difficulty in remembering the night...He stated that he had been selfish when trying to have sex with her...He stated 'it was never my intention to do these things. I couldn’t read her sign. She was as drunk as me.'"

34. In the Sentencing Assessment Report of Ms Edmunds dated 17 February 2021, she stated the following under "Attitudes":

"Mr Aslan attributed his offending behaviour to being under the influence of alcohol at the time of his offence. He initially denied having sexual intercourse with one of his victims and claimed that the victim had edited the text messages expressing that he does not speak to women like that and had not done anything wrong. In further discussions he described his offending as selfish and wrong, explaining his intention was to have sexual intercourse with the victims."

35. Under "Substance Use":

"He verbalised that at the time of both offences he had been mixing his alcoholic beverages which he attributed to his offending behaviour. Mr Aslan initially reported that he was drunk and still knew what he was doing."

36. Under the heading of "Sex Offending":

"Mr Aslan initially claimed that he had only had sexual intercourse with one of the two victims, but during further discussion he admitted to having sexual intercourse with both victims, describing them both as heavily intoxicated at the time of his offences."

37. Under "Insight into Impact of Offending":

"Mr Aslan displayed a level of insight into the impact of his offending when he described it as selfish behaviour. He expressed that the victims would not be able to trust anyone and verbalised the emotional impact his offences would have on them."

38. He was assessed, according to the Level of Service Inventory,-Revised, as a low to medium risk of reoffending, but as a result of the psychologist Mr Andrew Redden's Static-99R scoring, he was assessed as at “above average” risk category of sexual reoffending. As a result of the delay in this matter, a further Sentence Assessment Report was requested. That is under the hand of Marianne Jerome, dated 16 June 2022. She had the benefit of an updated pre-sentence consultation and an assessment by Luke Brabant who carried out an assessment of prediction of sexual recidivism.

39. However, Mr Brabant's assessment was not a comprehensive risk assessment and was limited by him having had no direct contact with the offender and being based only on the information available at the time of consultation, which included the Sentencing Assessment Report of Patrice Edmunds, and the pre-sentence consultation of the psychologist Andrew Redden, as well as Static-99R testing. In his report, Mr Brabant stated as follows:

"Mr Aslan has provided an inconsistent account of his offending over time. In the past he appears to acknowledge his offending and described it as unplanned. He attributed his offending to his misuse of alcohol and difficulties adapting to Australian cultural norms and standards. He identified possible consequences for the victims although it was noted that his expression of empathy appeared superficial. During more recent contact with the Community Corrections officer, Mr Aslan is stated to deny all aspects of his offending. He has reported that his sexual contact with the victims was consensual, and he expressed the view that one of the victims is blaming him for engaging in infidelity."

40. I note that Mr Brabant also refers to the offender as not having breached correctional centre rules and having received largely positive custodial case notes.

41. Marianne Jerome in her report of 16 June 2022 provided by way of update the following information: that Mr Aslan had completed the Positive Lifestyles Program and Emotional Wellbeing Program at Parklea Correctional Centre. He had gained employment within the gaol for a period of six months as a rations packer in 2021, which ceased because of COVID, and then recently as of the end of April 2022, secured a role as a librarian. He was apparently on anxiety medication, which had first been prescribed when he entered custody, although he did not feel that it was working. Under the heading of "Insight into Impact of Offending":

"Mr Aslan reported that he disputes the charges and that he is not guilty of the offences now before the Court. He reported that there was no use of violence, either verbal or physical violence, and stated it was consensual on both occasions."

42. As I have indicated, both Mr Redden and Ms Edmunds were called to give evidence on sentence and were subjected to lengthy cross-examination challenging their integrity and the content of their reports. In my view, both were supported by their case notes, being individuals who are trained to perform the function they performed, knowing that it is important to make case notes. They adhered to the content of their reports, and it should be noted that if there was any evidence of remorse or contrition in this matter which may also be relevant to the prospect of rehabilitation, it only came from their reports which were challenged.

43. The offender remains now in full denial mode, and there is, in the circumstances of a defended trial followed by a contested facts hearing in relation to the reports provided to the Court, the inevitable result that there can be no finding of any remorse or contrition in relation to these matters. That also reflects on the ability of the Court to make any finding favourable to the offender in relation to the prospect of rehabilitation. Rehabilitation is hardly likely to occur in circumstances where an offender totally denies having committed the offences, as in an offender's view there is nothing to be rehabilitated from.

44. Also available on sentence in respect of subjective matters is a report from Mr Albassit, psychologist, dated 19 February 2022, and a further report by Dr Richard Furst, psychiatrist, dated 16 June 2022. In addition, I note that tendered on the offender's behalf was a letter from his parents, Muran and Veli Aslan, dated 23 February 2022, which speaks about his education, his never having been in trouble in Turkey where he was born and raised, and how shocked and sorry they are to hear of his conviction, and their belief that he is not a person to do such a thing, "He is helpful, benevolent and emotional. We all love Berat. We have missed him so much and hope to meet him as soon as possible."

45. In addition, a number of certificates have been tendered. I will refer to them in chronological sequence. The first is a diploma from the Pamukkale University, located in Denizli, Turkey. It indicates that he had successfully completed all the requirements of physics in the Faculty of Arts and Sciences and in 2007, was accordingly awarded a Bachelor of Science. There is, together with that, a transcript as to the subjects and his level of success in dealing with those subjects. It is, however, in Turkish, and there is no translation; however, I accept that he obtained his Bachelor of Science.

46. In addition, there is a certificate from the New South Wales Casino, Liquor and Gaming Control Authority certifying that the offender had completed a Casino, Liquor and Gaming Control Authority course conducted by the Alex Beaumont Hospitality Training College, the certificate being dated 21 November 2008. In addition, there is a Statement of Attainment from Cambridge College International indicating that he had participated in an intensive General English course between 10 November 2008 and 21 November 2008 and was regarded as being successful in that course with a rating of four plus in each of “Speaking”, “Listening”, “Reading” and “Writing”.

47. A certificate was granted by Cambridge College International on 21 November 2008. Although the certificate refers to “seeing over the page” for an explanation of the levels, that was not placed before me. I would presume that a four plus is at least a reasonable level, if not a high level. There is a further Statement of Attainment from the Alex Beaumont Hospitality Training College, dated 26 November 2008, indicating that he had completed a training course of “Responsible Conduct of Gambling”, being part of a Certificate II in Hospitality. There is a further certificate from the Alex Beaumont Hospitality Training College indicating that he had successfully completed the Alex Beaumont “Coffee Skills Course Barista Training”, the certificate being dated 3 July 2009.

48. There is a further certificate from the Academy of Social Sciences certifying that he had completed the “Advanced Diploma of Business Management” during the period of 19 January 2009 to 26 November 2010. The certificate was issued on 9 February 2011 and is said to have been signed by a Gabriella Rodriguez, with an indecipherable signature. There is a further certificate in very similar form to the last certificate from the Clarendon Business College certifying that he had successfully fulfilled the requirements of a Certificate III in “Tourism (Retail Travel Sales)” during the period 14 February 2011 to 25 November 2011. It is said to be signed by a director, again with the same name as the Academy of Social Sciences, Gabriella Rodriguez. Again, the signature is indecipherable and is clearly different to the signature on the last certificate. Each of those comes together with an academic transcript as to the courses studied and his competence level in relation to each listed subject or course, he is said to have had a credit level of competence.

49. In addition, there is a document headed "International English Language Testing System" dated 30 November 2013, setting out his test results in relation to listening, reading, writing, speaking and giving an overall score of 6.5 which I anticipate, although it does not state it, is out of ten. There is a further certificate from the Australian College of Technology as to his successfully completing a Certificate IV in Marketing between 16 January 2012 and 8 June 2012. Again, in type it purports to be signed by Gabriella Rodriguez, director, with an indecipherable signature, which at least appears to be similar to the signature on the certificate from the Academy of Social Sciences. I do not take issue with whether the offender has completed those particular courses but note that they come from three apparently entirely different organisations, the Academy of Social Sciences Pty Ltd, the Clarendon Business College Pty Ltd and the Australian College of Technology Pty Ltd. All appear to have their premises at the same George Street address.

50. There is a further document which is dated 4 August 2016 but is almost entirely in Turkish. It gives a Turkish ID number, first name, surname, father's name, mother's name, date of birth, place of birth, district of registration and province of registration. It appears to be a Turkish birth certificate indicating that the offender was born on 23 March 1983 in Ankara, indicating that he is now some 39 years of age and was at the time of the offending against AW, who was 18 years of age at the time, approximately 35 years of age. The remaining certificates are from what is referred to as the Intervention Hub. There is a certificate of completion for "Emotional Wellbeing" dated 28 March 2022, a certificate of completion of "Thinking Skills" dated 31 May 2022, and a certificate of congratulations in relation to "Alcohol Awareness" dated 20 June 2022.

51. As Dr Furst is well-recognised as an experienced psychiatrist whose reports are frequently before the courts, I will take the subjective matters from the material that I have already referred to, plus essentially his report rather than the detail provided in Mr Albassit's report, as Dr Furst had the benefit of Mr Albassit's report when he compiled his report.

52. The offender was born in Ankara. He is reported to have done fairly well in primary school and in high school, completing the bachelor’s degree in Physics at university.

53. His father was a barber and his mother a housewife, and there are no indications of any domestic violence or drinking in the family home, the offender having been raised in a family of the Muslim faith. He stated that he had mood problems since he was eight or nine years of age, such that he could be super-happy at times and then on the bottom the next minute. The example he gave was of something going wrong, like burning toast, would destroy the whole day if the making of toast went wrong. Dr Furst states, "The descriptions he gave were not indicative of sustained mood disturbance, generally lasting for minutes or hours rather than days or weeks on end."

54. He provided a history of being involved in a bus accident with his father and sister in Ankara when he was about eight years of age, with the bus rolling over twice, and him consequently not being able to sleep in the dark for the next five or six years and having recurring memories of the incident. He also reported observing a 17- or 18-year-old girl hit by a train at a railway station when he was 14 years old, and this being a stressful event. He reported being a paranoid person in his teenage years and having been bullied at high school with people who would wait for him outside his house and bash him or put a knife to his throat.

55. He informed Dr Furst that he had been involved in an approximately two-year relationship while in first and second year at university; that he and his girlfriend had gone to a toilet in a forested area near the university to have sex, but that while he was with her a stranger came to the toilet armed with a large knife and threatened them both before raping his girlfriend in front of him. He subsequently got away. He said that his girlfriend was kidnapped, and he later found her unconscious. Neither of them reported the matter to the police. I note that this incident, said to have occurred in Turkey, is not an incident that he had disclosed to Mr Albassit.

56. He migrated to Australia in 2008 when he was 24 years of age and embarked on the courses that I have referred to and continued over some years. Although he additionally tried to study a master’s degree in science, it was too expensive for him and his English was not good enough, so he participated in the courses I have referred to. Most of his work over the intervening 14 years has been in the hospitality industry. He said he had a relationship of some seven to eight months’ duration the first year after arriving in Australia, and subsequent brief relationships. He also claimed to have experienced:

"Mood changes that included feelings of panic, anxiety and depression, none of which was sustained mood changes, with his descriptions being more in keeping with anxious tendencies and emotional dysregulation."

57. He is said to have seen a psychologist over a period of five to six months in 2019 but to have discontinued because of the cost. I note that those consultations were after he had been charged in relation to the offending, and no report from that psychologist has been provided to me, which may have been of some assistance. He was prescribed antidepressant medication in 2019 by his GP but discontinued after taking it for about ten days because it made him feel terrible. He has been prescribed Citalopram from around February 2021 by a psychiatrist working with Justice Health.

58. He claimed that he would drink alcohol on occasions when he was at university, but he was not dependent on alcohol and drank socially in the years after arriving in Australia, including binge-drinking on some weekends with his intake increasing significantly in the three-year period from 2016 until his arrest in 2019. He has smoked cannabis monthly from the age of approximately 29 to 30 years of age and was smoking on a more regular basis in 2016 to 2017 and onwards when he was 34 years of age, between half a gram and one gram per day over the years following 2017.

59. He has no major health problems from his childhood or adolescence, although he suffered some of the usual childhood illnesses. There is nothing from his medical history, except depression, of any relevance to the sentencing process.

60. His criminal history is also before the Court. It demonstrates that he has one past offence, being a common assault committed on 3 July 2016 and dealt with at the Newtown Local Court on 21 July 2016, in relation to which he received a s 10 bond of 12 months. It is accordingly irrelevant to the sentence proceedings. I accept that he has no criminal history in Turkey as referred to by his parents and he has no criminal history in New South Wales except for the s 10 bond referred to.

61. Dr Furst found that he had no signs of mood disturbance or psychosis on treating him and refers in detail to the psychological report of Mr Albassit, dated 19 February 2022. The history obtained by Dr Furst was similar to that obtained by Mr Albassit, with the exception of no mention of the girlfriend being raped in Turkey. Dr Furst stated as follows:

"Mr Albassit attributes the highs and lows reported by Mr Aslan to cyclothymic disorder. He also noted features of apparent depressed mood/depression, including excessive guilt, diminished ability to think and concentrate and functional impairment due to hypermania. Mr Albassit noted preoccupation with unpleasant worries and experiences and loss of energy in the offender and also believed that the offender experienced manic symptoms of hypersexuality and reckless and impulsive behaviour."

62. He goes on to state:

"I would respectfully disagree with the assertion/opinion that the offender has a primary mood disorder such as cyclothymic disorder. I do not believe he has any convincing signs of a primary mood disorder or bipolar tendencies. The available history from the offender is in keeping with psychiatric and psychological symptoms related to trauma and in the anxiety cluster. The emotional dysregulation Mr Aslan reported was rapid, typically within minutes or hours, which is consistent with an emotional dysregulation, generalised anxiety and/or panic symptoms. He probably also has an unstable personality structure stemming from his childhood trauma and a lack of nurturing/affection in his childhood.

Excessive drinking, promiscuity, recklessness, impulsivity and low self‑esteem of themselves do not warrant the diagnosis of mania, and there were no features of mania described by the offender historically or evident since his incarceration last year, also going against the diagnosis of cyclothymia."

63. In his opinion, Mr Aslan:

"…has an unstable personality structure compounded by anxious tendencies and probably an underlying anxiety disorder the origins of that being a lack of affection, a lack of nurturing in his childhood and the trauma of his bus accident when he was involved in at a formative age."

It would appear that Mr Aslan has intimacy deficits that have made it difficult for him to form and to maintain relationships. He presented as a somewhat impulsive and promiscuous person who was most likely seeking pleasure and a ‘lift’ in his mood and/or relief of anxiety through his drinking excessively and casual sexual liaisons with women around the time of his offending.

The relationship of those tendencies/patterns of behaviour and his anxiety to the offending behaviour is unclear, however, the offences in question before the court both took place in the period in which he described having been ‘reckless’, i.e. the years from 2016 onwards, and during the period he was often drinking excessively, alcohol likely being a disinhibiting factor in relation to the offending before the Court in both January 2017 and February 2019.

Mr Aslan was most likely using alcohol and engaging in a pattern of casual sex encounters/promiscuity as a means of feeling better about himself and coping with his anxious tendencies throughout the period of the offending, mitigating to some degree against the seriousness of his actions."

64. In this matter, I do not accept alcohol and the consumption of it by the offender as in any way being a mitigating factor and there is nothing in Dr Furst's report which indicates that the offender's mental or psychological state was in any way a causal factor in relation to the offending. Dr Furst assessed him as being, according to Static-99R, an average risk of reoffending, being a lower category than that asserted by Mr Redden. Dr Furst also spent some time in his report dealing with the question of sexual recidivism by those who have received appropriate treatment in custody and/or in the community. In effect, he asserted that there was no significant difference between the rate of reoffending, and he estimated that the risk of reoffending for Mr Aslan was 12 to 15% within five years of release from custody.

65. He annexed to his report several articles from the Crime and Justice Bulletin dealing with issues such as "Does the Custody-based Intensive Treatment (CUBIT) program for sex offenders reduce re-offending?" and a paper titled "Trends and issues from the Australian Government, Australian Institute of Criminology" titled "Patterns and predictors of re-offending amongst child sexual offenders - A rapid evidence assessment". The report from Crime and Justice reached the conclusion that:

“There is some evidence to suggest that completing CUBIT results in a considerable reduction in general recidivism risk. No evidence is found to suggest that CUBIT completion reduces sexual or violent re-offending. However, it is difficult to draw any conclusion from the null results, since the power of the statistical methods employed to detect a treatment impact in this study is limited given the relatively small sample size.

66. I have already referred to the fact that in the circumstances of this matter there is no evidence of remorse or contrition, the offender having returned to a state of complete denial. There is also no clear causal connection of his anxiety or personality structure to the offending.

67. I have already referred to finding each of the offences to fall within the mid-range of objective seriousness, and in this matter there can be no doubt that the s 5 threshold requiring a sentence of a term of imprisonment is clearly passed. Appropriately, no contrary submission has been made on the offender's behalf. As I have said, I have taken the maximum penalty provided by the legislation of 14 years into account, as well as the standard non-parole period provided of seven years.

68. I have not yet referred to the offender's period of time in custody, and I accept that his time in custody has been significantly more difficult than would ordinarily be the case because of COVID-19. He in fact contracted COVID‑19 while in custody, but whether he was in custody or not, that may have been the same result. But the impact of COVID-19 on the prison system has caused the necessity for the authorities to lock down prisoners, to isolate them from each other, and I accept that the evidence given by the offender on sentence about the significant number of periods and durations of those periods when he was being retained in custody in far more arduous or difficult circumstances than would ordinarily be the case.

69. I have particularly taken that into account in determining the sentence to be imposed in this matter, and in particular in relation to whether I should impose the standard non-parole period in the indicative sentence, as I intend to proceed by way of an aggregate sentence. In my view, there is little to distinguish between the individual occasions of sexual offending, and I intend to provide the same indicative sentence in relation to each of them, taking into account the COVID hardship and also the fact that the offender has little connection to Australia, and his family, who of course he has only been able to contact on occasion by AVL link, they being in Turkey.

70. Taking those matters into account, it is important that any sentences imposed in relation to this matter reflect both specific and general deterrence. Accordingly, in relation to each of the offences, the indicative sentence is one of eight years’ imprisonment with an indicative non-parole period of six years. The aggregate sentence is 12 years with a nine-year non-parole period. As he was first placed in custody on 4 January 2021, the non-parole period of nine years will make him first eligible for parole on 3 January 2030. The balance of term is three years, and the 12-year sentence will accordingly expire on 3 January 2033.

71. I note that it will be apparent that I have not found special circumstances. The fact that this is the offender's first time in custody is in itself not a reason to find special circumstances, and on the evidence, I have no assurance that extending the period of parole beyond what is the period of maximum supervision pursuant to the regulations, that is, three years, would assist in any treatment or rehabilitation in the circumstances where the prospect of rehabilitation in the absence of any acknowledgment of offending, and the continuing denial is a moot or very guarded possibility.

72. I have failed in dealing with this matter to note one other matter of significance, and that is, first of all, the offender at trial was not believed by the jury. On giving evidence on sentence, he specifically denied many of the matters raised in the reports of Mr Redden and Ms Edmunds. Indeed, his evidence in chief consisted of an extensive series of questions dealing with particular matters raised in the reports, to which his answer was simply "No", being a denial of what was contained in the report. In cross-examination, when a number of particular phrases attributed to him were put to him, he simply said "I don’t recall", or that he had “never said that”, such as whether he had “read the wrong signals”, “misinterpreted body language”, or "I couldn't read her signs, she was as drunk as me".

73. I also omitted to refer to one other matter, which was relevant to reducing the indicative parole period to six years, and that is that since going into custody he has been in protection, which is a more arduous form of serving a term of imprisonment than if in the general population, including being locked in on a regular basis, even without COVID. He went into protective custody on his admission, as he said in evidence, because he was asked whether he wished to be in protective custody and made the request that he be so placed. He is, in those circumstances, entitled at any time to ask to be released from protective custody because it is not a determination that has been made by Community Corrections. However, I anticipate that it is unlikely that he would ask to be released from protective custody because it is a safer form of custody than being in the general population, where sex offenders can be harshly dealt with by other prisoners, although that more frequently relates to offenders charged with child sexual offending.

74. I also note that in recent days COVID, by way of the new variants, is continuing to expand its effects on the community and it can be anticipated that there will continue to be significant restrictions on prisoners because of the likely continuing waves of COVID infections within the community and within the prison system, and I have taken all of those matters into account, including the specific periods of isolation that he has referred to in his evidence, such as being in custody for a period of 24 hours per day for 20 weeks from about late August 2021 to December 2021, and a period of COVID isolation when he in fact was positive himself.

75. It may be that when my reasons are available, I will take those last passages and reinsert them at a more appropriate place rather than as an addendum to the sentence. Is there anything that I have omitted of significance or error?

LAWLESS: Yes, implicit that issues of concurrency and totality have not--

HIS HONOUR: Yes, I have imposed an aggregate sentence.

LAWLESS: Yes, your Honour.

76. HIS HONOUR: I have taken into account the totality of the three offences and the totality of the sentences indicated by way of the indicative sentence. As you will notice, the indicative head sentence for each was eight years and an indicative non-parole period of six years, that is one year less than the standard non-parole period. I have had regard to the fact that there are two separate victims and three separate offences, and there had to be some significant accumulation in order to deal with those factors. Accordingly, the sentence is 12 years with a nine-year non-parole period.

**********

Amendments

16 June 2023 - Errors in letter case and typing amended.

Decision last updated: 16 June 2023