R v Atai
[2020] ACTSC 335
•20 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Atai |
Citation: | [2020] ACTSC 335 |
Hearing Date: | 20 November 2020 |
DecisionDate: | 20 November 2020 |
Before: | Burns J |
Decision: | See [20]–[23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person under 16 years – plea of guilty – consideration of substance abuse – relevance of personal deterrence – prospects of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 55(2) |
Parties: | The Queen (Crown) Habib Atai (Offender) |
Representation: | Counsel R Roberts (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 214 of 2020 |
BURNS J:
You entered a plea of guilty in the ACT Magistrates Court on 24 September 2020 to one charge of sexual intercourse with a person under 16 years of age (CAN 6417/2020) contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 14 years’ imprisonment.
You were committed for sentence to this Court on 24 September 2020. You have adhered to your plea of guilty. I accept that your plea of guilty was entered at the earliest reasonable opportunity and I will, for that reason, reduce by approximately 25 per cent the sentence that would otherwise be appropriate for this offence.
I note that you were initially arrested and remanded in custody on 8 May 2020 for other offences and it was not until 26 May 2020 that you were charged with the present offence. While the period you spent in custody between 8 and 26 May 2020 is technically referrable to other offences, it is appropriate to commence any sentence of imprisonment which I impose for the present offence from 8 May 2020. This will make sentencing more straightforward with regard to any other offences you may be facing.
The facts
The Crown's Statement of Facts states that between March and May 2020 you and the victim, who was 14 years old at the time, were in a relationship. You were 26 years old. The two of you met through a mutual friend.
You and the victim exchanged messages through SnapChat including declarations of love for one another and plans for the victim to visit you at your home. Between
April and May 2020, the victim attended your residence at a suburb in Canberra on
five or six occasions. She told police that on each such occasion you asked her to have sex with you. She told you she did not want to have sex which you accepted.
On 14 May 2020, however, the victim attended your residence and you engaged in penile-vaginal sexual intercourse with her. She had told you that she was 14 years old and you told her that you were 23 years old. It has been accepted that there was a true sense of affection between you and the victim.
Consideration
It is not suggested that this is a case in which you engaged in predatory conduct. I also note that there is no suggestion that the offence is aggravated by lack of consent on the part of the victim. The fact that the victim was willing to engage in sexual intercourse with you does not mitigate the offence.
The law recognises that a person under the age of 16 years has not developed the maturity or experience to willingly give consent to engaging in sexual activity. In assessing the objective seriousness of this offence, I take into account that penile-vaginal intercourse was involved. I also take into account the significant age difference between yourself and the victim.
I also take into account that the victim was only 14 years of age and may be expected to be still quite immature. No Victim Impact Statement has been provided but it may be presumed that harm is likely to arise for the victim because of this conduct, even if it is not immediately apparent to the victim. I would assess the objective seriousness of the present offence as on the border of the lower and mid-range of such offences.
Subjective features
A Pre-Sentence Report prepared for the sentence hearing states that you were supervised on a Good Behaviour Order in 2018 [redacted]. ACT Corrective Services records indicate that you successfully engaged with that service. Since that time, you have been subject to numerous supervised bail orders between January 2019 and
April 2020.
You were subject to breach action in January and June 2019 for failing to accept supervision and failing to comply with directions given by ACT Corrective Services. Your conduct at the Alexander Maconochie Centre since 9 May 2020 was initially satisfactory, however, you were subject to disciplinary action on 4 November 2020 for engaging in a fight with another detainee.
You were born and raised in Iran as one of eight children. Your upbringing was difficult due to poverty and you worked from a young age to financially support your family. Your father was often physically violent and tended to neglect you. The information provided by Companion House is that your family has a long history of persecution and trauma in Iran.
You came to Australia with your family in 2017 except for two sisters who remain in Iran. [redacted].
You are single with no dependants. You were previously in a relationship which ended as your family disapproved. You told the author of the Pre-Sentence Report that the breakdown of that relationship caused you significant stress.
You resided in an ACT Housing property prior to being remanded in custody. You have a good history of employment and you have provided financial assistance to your family in the community. Unfortunately, you have also used illicit drugs. You first consumed illicit substances in Iran. You subsequently commenced using Tramadol and Methadone which assisted you to relax. In Australia, you have mostly abused cannabis.
You told the author of the Pre-Sentence Report that you had experienced depression from childhood and commenced using cannabis as a result. You said that your depression increased as a result of family issues after arriving in Australia. You were reviewed by Forensic Mental Health Services after being remanded in custody in
May 2020, but you are not subject to any ongoing treatment.
You told the author of the Report that you were unaware that the victim was underage. You said that she looked older and that she lied to you about her age. You blamed her for not leaving you alone. You have accepted, through your lawyer today, that you did know that the victim was under 16 years of age.
The statements that you made to the author of the Pre-Sentence Report demonstrate a lack of remorse. They also demonstrate a failure to completely accept responsibility for your actions. This suggests that personal deterrence is still a relevant sentencing consideration. I am satisfied of your prospects for rehabilitation, if you address substance abuse and your attitude to the present offence.
Your lawyer and the Crown have provided me with a number of cases demonstrating the types of sentences that have been imposed in the past for offences of this type. I am satisfied that a partially suspended term of imprisonment is warranted. In coming to that conclusion, I have particularly taken into account the difference in age between yourself and the victim, the age of the victim, your persistence in making sexual advances to the victim and the fact that the offence involved penile-vaginal sexual intercourse.
Sentence
I record a conviction for the offence of sexual intercourse with a person under 16 years (CAN 6417/2020) and you will be sentenced to 15 months’ imprisonment, which I have reduced from 20 months because of your plea of guilty. That will commence on
8 May 2020 and expire on 7 August 2021.
The period from 8 May 2020 to 19 November 2020 is to be served by way of full-time imprisonment.
The balance of the sentence will be suspended and there will be a
Good Behaviour Order for a period of 18 months from today, 20 November 2020, with conditions that:
a) you accept the supervision of ACT Corrective Services for that period of 18 months or such lesser period as deemed appropriate by your supervisor;
b) you are to obey all reasonable directions of your supervising officer; and
c) further, you are to undertake such assessments, counselling or treatment as directed by your supervising officer particularly with regard to substance abuse, anti-social attitudes and mental health issues.
You should also be made aware of the fact that there is still now a significant period of imprisonment hanging over you if you breach the orders that I have imposed. The other charges that are currently pending against you will need to be resolved before you would be entitled to be released under the orders that I have made.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
4
0
1