R v Atai (No 2)
[2021] ACTSC 272
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Atai (No 2) |
Citation: | [2021] ACTSC 272 |
Hearing Date: | 15 October 2021 |
DecisionDate: | 15 October 2021 |
Before: | Mossop J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – act of indecency without consent – attempted sexual intercourse without consent – found guilty in judge alone trial – medium risk of general reoffending – above average risk of sexual reoffending – no acceptance of responsibility or remorse – convictions recorded – sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54(1), 60(2) Criminal Code 2002 (ACT), s 44 Migration Act 1958 (Cth), ss 501, 501CA |
Cases Cited: | TAN v The Queen [2011] VSCA 427; 35 VR 109 R v Atai [2020] ACTSC 335 R v Atai [2021] ACTSC 157 |
Parties: | The Queen ( Crown) Habib Atai ( Offender) |
Representation: | Counsel S Jerome ( Crown) S McLaughlin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 215 of 2020 |
MOSSOP J:
Introduction
On 15 July 2021, at the conclusion of a three-day trial, I found the offender, Habib Atai, guilty of the following offences:
(a)Counts 1 and 4: act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT). The maximum penalty is 7 years’ imprisonment.
(b)Count 2: attempted sexual intercourse without consent, contrary to s 54(1) of the Crimes Act by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty is 12 years’ imprisonment.
(c)Count 3: sexual intercourse without consent, contrary to s 54(1) of the CrimesAct. The maximum penalty is 12 years’ imprisonment.
Facts
On 17 January 2020, the victim, who was 16 years old at the time, had been hanging out with her friends at the Woden shopping centre. When her friends decided to go home, she decided to meet up with someone called Jacob who she had met on Snapchat about a month earlier but had never met in person. She met up with Jacob outside David Jones. Jacob arrived with a friend, the offender. The males said they were going to smoke “weed”. The victim accompanied Jacob and the offender in the offender’s car to their apartment. The men were smoking on the balcony and talking to each other in a foreign language that the victim could not understand. They then moved into the lounge room.
Jacob said he wanted to have a nap. The offender asked Jacob to sleep in the other room so that he could spend some time with the victim. The offender came close to the victim and kept trying to touch her on her legs and knees. She felt uncomfortable. The offender forced her to touch his penis and she said she did not want to do anything. The victim moved rooms to sit near Jacob. Jacob then left the unit. The offender moved his mattress into the living room, lifted the victim up and put her on the mattress. He tried kissing her while she was moving her head from side to side and he was holding her arms (This is count 1 – act of indecency without consent).
At one point, the offender pulled down his pants and tried to take the victim’s underwear off and put his penis in her vagina (This is count 2 – attempted sexual intercourse without consent).
When the victim told the offender to stop doing this, he got up and tried to put his penis in her mouth. The tip of his penis was in her mouth for a couple of seconds until she was able to pull her head back and remove it (The offender intentionally putting his penis into the victim’s mouth gives rise to count 3 – sexual intercourse without consent).
The offender then masturbated and ejaculated onto the victim’s face and shirt (This is count 4 – act of indecency without consent).
Victim impact statement
The victim provided a victim impact statement which was read in court by the prosecutor. It refers to the ongoing impacts that the offences continue to have on the victim. Following the offences, the victim has experienced feelings of depression and anxiety and has had to seek counselling to encourage her to complete year 12. She experiences difficulties sleeping and recurring nightmares of the incident. The victim feels powerless over her life and as though she cannot live to her full potential. She has lost the confidence and motivation to do things she loves.
Each of these identified impacts are within the range of impacts to be expected from offending of this type on a young woman such as the victim.
Objective seriousness
The act of indecency involving kissing is at the low to medium range of objective seriousness for this offence. It would be at the low end except for the fact that it occurred in a context of the lead-up which involved a degree of at least physical constraint and clear expressions of lack of consent.
Count 2 is in the mid-range of objective seriousness for an attempted sexual intercourse. Although in some cases an attempt may be as serious as a completed offence, in this case it is not, with the offender desisting as a result of the victim’s resistance.
Count 3 occurred in the context of the lack of consent and resistance by the victim to the previous acts. It was momentary only, and only the tip of the offender’s penis penetrated the victim’s mouth. It is in the low to mid-range of objective seriousness for this offence.
Count 4 involved the offender masturbating and ejaculating on the victim’s face and shirt. The offender laughed. It involved a degree of humiliation and degradation for the victim both as a result of the physical fact of ejaculating onto her face and shirt, as well as the offender’s attitude in light of her ongoing lack of consent. It is above the mid‑range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 6 October 2021.
The offender is 27 years old. He was 26 years old at the time of the offending. He was born and raised in Iran. He was one of eight children and the oldest boy. He disclosed a difficult childhood characterised by poverty. He was required to commence work from a young age in order to support his family. The offender’s father neglected him and perpetrated physical violence towards members of the family including him. The offender moved to Australia with his parents and some of his siblings when he was in his early twenties. Two sisters remain in Iran. In 2018 the offender contravened a family violence order that had been taken out against him to protect his mother and three siblings. There are no current protection orders against the offender. The offender is single with no dependents.
Before being incarcerated, the offender lived alone in a Housing ACT property. However, Housing ACT advised in October 2021 that although the tenancy was still current, action to end the tenancy was due to commence shortly. While the offender is a permanent resident, he is liable to be deported as a result of this offending and the other offences for which he has been convicted.
The offender completed schooling in Iran to the equivalent of year 8. He was then employed as a tailor and a hairdresser. The offender disclosed that he had worked in Australia as a tailor, an apprentice barber and for the month prior to being incarcerated, as a labourer.
The offender disclosed that he became addicted to opioid medications when he was between 17 and 19 years old. He irregularly smoked cannabis while in Iran but indicated that he abstained for several months once in Australia. In the months preceding his incarceration, he increased his use of cannabis to two grams per day as a coping mechanism for his stress and because of antisocial influences in his life. Although the offender indicated a desire to abstain from cannabis use, he has not engaged in any interventions specifically targeted toward addressing this. The offender has engaged with Companion House, although not specifically in relation to alcohol and drugs. In October 2020, a counsellor advised that the offender would occasionally appear to be affected by drugs during sessions. The offender has also used synthetic cannabis.
The offender disclosed that he has never sought professional help to manage his feelings of anxiety and unaddressed childhood trauma. He has recently been prescribed with medication for his anxiety and sleeping difficulties.
The offender did not agree completely with the Statement of Facts, nor did he express an acceptance of responsibility for his actions or empathy for the victim. He reported that he could not remember some of the facts because he had smoked cannabis around the same time as the incident. The offender reported laughing when he read the Statement of Facts because of the victim’s lies. He claimed that while the victim had not consented to vaginal sex, she had consented to oral sex. The offender could not recognise any impact that the offending may have had on the victim, instead expressing the opinion that the victim was seeking financial compensation. The offender also criticised the criminal justice system, stating that the police did not believe his version of the incident. He did not consider that he is misinformed about consent or sexuality, or that he has poor attitudes towards women.
The author of the pre-sentence report assessed the offender as having a “medium risk” of general reoffending and an “above average” risk of sexual reoffending. The author expressed the opinion that the offender would benefit from participating in the Sex Offender Treatment Program which is available at the AMC and in the community. The author also expressed the opinion that the offender would benefit from an intensive alcohol and drug treatment program to address his substance dependency and self‑medicating issues.
Criminal history
Prior to these offences, the offender’s criminal history was limited to one count of contravening a family violence order, for which he received a 12-month good behaviour order. Following these offences, the offender was convicted of one count of sexual intercourse with a young person and sentenced to 15 months’ imprisonment, suspended after six months and 13 days with an 18-month good behaviour order. In 2020 he was also sentenced to five months’ imprisonment suspended after serving two months with a 12-month good behaviour order on a charge of aggravated furious/reckless/dangerous driving committed in 2019.
Consideration
Each component of the offending contributed to the overall seriousness of the course of conduct. It involved a clear disregard for the autonomy of the victim. It involved a degree of exploitation of physical control. It involved a degree of degradation and humiliation of the victim.
Obviously of concern is the attitude of the offender to sexual offending, as disclosed in the pre-sentence report and the attitude to sexual relations disclosed in the evidence in the case, referred to in the earlier reasons: see R v Atai [2021] ACTSC 157 at [117]‑[132]. The foundation for these attitudes is not clear. I accept the opinion of the author of the pre‑sentence report that the risk of sexual reoffending is above average. The accuracy of that is reflected in the fact that following the offending in the present case, the offender committed a further offence involving an underage girl.
Plainly, considerations of general and specific deterrence, punishment and recognition of harm done to the victim are all important sentencing considerations. Rehabilitation must be a goal, although having regard to the offender’s demonstrated attitudes, the prospects must be considered to be guarded.
The parties agreed that I should take into account the prospect of deportation following the completion of his sentence arising by operation of ss 501(3A), (7) and 501CA of the Migration Act 1958 (Cth) by treating the burden of imprisonment as greater for a prisoner who knows that following his release he will be deported: see TAN v The Queen [2011] VSCA 427; 35 VR 109 at [126].
The sentences that I will impose are sentences of two months on count 1, 12 months on count 2, 12 months on count 3 and 12 months on count 4. Given that the various offences all formed part of a course of conduct on the offender’s part, there will be a significant degree of concurrency between the sentences. The total sentence will be 27 months’ imprisonment. The non-parole period will be 16 months.
The offender has been in custody since 8 May 2020. During that period, he has served six months and 13 days as the unsuspended portion of a 15-month sentence imposed by Burns J for sexual intercourse with a person under the age of 16 years (see R v Atai [2020] ACTSC 335) and two months of the unsuspended portion of a five-month sentence for aggravated furious/reckless/dangerous driving imposed by a magistrate. The service of those two sentences means that 259 days of the period since 8 May 2020 have been attributable to other sentences. Having regard to this, it is appropriate to backdate the sentence to reflect that period which he has spent in custody which is not attributable to that other offending. This gives a backdate date of 22 January 2021.
Orders
The orders of the Court are:
1. On count 1 (SCCAN 2020/173) the offender is convicted and sentenced to imprisonment for 2 months commencing on 22 January 2021 and ending on 21 March 2021.
2. On count 2 (CC 2020/5537) the offender is convicted and sentenced to 12 months’ imprisonment commencing on 22 February 2021 and ending on 21 February 2022.
3. On count 3 (CC 2020/5538) the offender is convicted and sentenced to 12 months’ imprisonment commencing on 22 August 2021 and ending on 21 August 2022.
4. On count 4 (CC 2020/5539) the offender is convicted and sentenced to 12 months’ imprisonment commencing on 22 April 2022 ending on 21 April 2023.
5. The non-parole period commences on 22 January 2021 and ends on 21 May 2022.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 9 November 2021 |
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