R v Ayoub

[2010] NSWDC 137

CITATION:	R v Ayoub [2010] NSWDC 137
HEARING DATE(S):	16, 17, 18, 19, 22, 23, 24 and 25 February, 1 and 2 March, and 30 April 2010
JUDGMENT DATE:	30 April 2010
JURISDICTION:	Criminal jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	Total sentence of four years and six months imprisonment with an effective non-parole period of three years.
CATCHWORDS:	CRIMINAL LAW - sentence following a jury trial - counts of recklessly inflict actual bodily harm with intent to have sexual intercourse, sexual intercourse without consent, and perverting the course of justice
LEGISLATION CITED:	Crimes Act 1900: s 61K(a), s 61I and s 319 Crimes (Sentencing Procedure) Act 1999: s 3A
PARTIES:	R v Ronnie Ayoub
FILE NUMBER(S):	2009/131156
COUNSEL:	Mr E Moberley (Crown Prosecutor) Mr A Conwell of counsel (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Nyman, Gibson, Stewart Solicitors (Offender)

REMARKS ON SENTENCE

1. The offender, Ronnie Ayoub, is before me for sentence having been found guilty by a jury on 2 March 2010 of four offences namely:

Count 1: Recklessly inflict actual bodily harm with intent to have sexual intercourse. This is an offence under s 61K(a) of the Crimes Act 1900 for which the maximum penalty is twenty years imprisonment. There is no standard non-parole period.

Count 2: Sexual intercourse without consent. This is an offence under s 61I of the Crimes Act 1900 for which the maximum penalty is fourteen years imprisonment. There is a standard non-parole period of seven years.

Counts 3 and 4: Intent to pervert the course of justice. These are offences under s 319 of the Crimes Act 1900 for which the maximum penalty is fourteen years imprisonment. There is no standard non-parole period.

2. The offender pleaded not guilty to the charges and there was a trial before a jury at Parramatta that ran for some ten days in February and March 2010. There were two complainants. The first count of recklessly inflict actual bodily harm with intent to have sexual intercourse related to Ms CA, then aged fourteen. The offender’s defence to this charge, in essence, was that the events described by Ms CA did not occur at all. The second count of sexual intercourse without consent related to Ms DP, then aged eighteen. The offender’s defence to this charge, in essence, was that Ms DP consented to the sexual intercourse. The jury clearly accepted the evidence presented on behalf of the Crown and, in particular, the evidence of the two complainants. In those circumstances I accept substantially the prosecution case as presented in evidence.

3. The relevant facts as I find them may be shortly stated as follows:

The Crown case is that on Sunday 1 June 2008 the two complainants were in a room at the Phillip Lodge Motel at Ashfield where Ms DP was staying. At about 5pm that afternoon they telephoned the offender who they knew as Mohammed, an ex-boyfriend of their friend Ms TJS, and invited him over. Mohammed, the offender, was known as Ronnie. In due course, at about 7.45pm, the offender arrived at the motel room in the company of a friend Kian Sijanevanian.

It was the Crown case that the plan of the complainants was to “hang out and talk” to the two men. It is clear, however, that at least two of the participants smoked cannabis that evening.

Some time after they had been in the motel room with the two young women the offender pulled Ms CA, then aged fourteen, into the bathroom and shut the door. This was subsequent to her teasing him about his clothes and jewellery and saying he looked like a rap singer, Snoop Dog. He replied to the effect that she “had attitude”.
Once inside the bathroom the offender pulled down his pants and his underwear to his knees. His penis was, to use Ms CA’s words, “sticking up” and his hand was on his penis pulling it. He then told her to “come down” and started pulling her by the hair towards his penis. She pulled away and said, “No, leave me alone.” The offender got angry and said words to the effect of, “Stop playing childish games.” When Ms CA continued to resist the offender slapped her twice on her left cheek. She yelled out to him telling him to leave her alone and not to touch her and to get away. He continued to try and pull her down and she continued to struggle and pull away and kept saying no, whereupon he tried to pull down her top. When she tried to push him away he grabbed her left hand and bit it. She screamed. He said something like, “I wouldn’t hurt you if you just did what I said.” He tried again to pull her down by the hair and she again tried to push him away. He then punched her to the abdomen, using the Dolce and Gabbana ring that he was wearing. It left an imprint on her body. Next, he pushed her back into the sink and her head banged against the corner of the shower recess. Ms CA managed to get to the door, but he blocked it with his foot. She said something like, “Leave me alone. What, do you like hitting girls or something? Does it make you feel tough? Just leave me alone.” And then he punched her to the side of the face with a closed fist to the jaw, once, or possibly twice.

At this stage Ms DP came to the bathroom door and when the door was opened she observed the offender with his belt undone and his fly open. She observed Ms CA with tears in her eyes and visibly upset. Ms DP subsequently observed a bruise on Ms CA’s face and on her stomach. I am satisfied that the bruise on the stomach was caused by the Dolce and Gabbana ring that the offender was wearing.

Ms CA left the bathroom and went and lay on a bed.

A short time later Ms DP and the offender went into the bathroom where they engaged in an act of sexual intercourse during the course of which, after spitting on her hand she took his erect penis and pulled it. Then she placed it in her mouth for about two minutes but stopped because, using her words, “it smelt weird, like he hadn't had a shower for two days.” He told her, “Open your mouth and hold out your tongue”, and when she stuck out her tongue he put his penis on it and pulled it, “like he was wanking himself”. He also put his hand down the front of her shirt inside her bra and grabbed her right breast. He ejaculated over her face and chest leaving semen on her nose, chin and chest. He used tissues to wipe his penis and pushed some down the front of her shirt. He left the bathroom. She used tissues to wipe the semen from her face and then also returned to the bedroom.

The jury clearly accepted, and I find, that Ms DP only participated in the sexual intercourse out of fear following upon what she had earlier observed and heard in respect of the offender in relation to Ms CA, as a result of which she feared for her own safety.

In addition to the bruising suffered by Ms CA she experienced pain to her jaw, for which she subsequently sought treatment at hospital. Ms DP was later admitted to the Missenden Unit for psychiatric treatment in relation to a condition of depression and was only discharged in mid June of that year.

Some months later, on various occasions in September 2008, the offender threatened the complainants in an attempt to persuade them to go to the police and say that they had made the whole thing up, with a view to having the charges against him dropped. On one occasion, in the vicinity of the Birrong Railway Station, the offender made threats of personal harm to Ms DP on the loud speaker of a mobile phone held by a mutual friend, Ms SB. On other occasions, including an episode at Merrylands, the offender made threats of personal harm to Ms CA and also threats of harm to her family.

4. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing. The purposes for which a court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence;

(b) To prevent crime by deterring the offender and other persons from committing similar offences;

(c) To protect the community from the offender;

(d) To promote the rehabilitation of the offender;

(e) To make the offender accountable for his or her actions;

(f) To denounce the conduct of the offender;

(g) To recognise the harm done to the victim of the crime and the community.

5. Each of the offences was objectively serious and in my view, for reasons I will come to, no sentence other than imprisonment would be appropriate for each offence.

6. There having been no plea of guilty there can be no utilitarian discount applied to any of the sentences.

7. The standard non-parole period in respect of the second offence is intended for middle range offences where the offender is convicted after trial. Even if not applicable, that period acts as a guidepost.

8. Count 1 involved the infliction of actual bodily harm with intent to have sexual intercourse relates to Ms CA. There was no planning involved and the offender was present at the request of the victim in the motel room. The jury, however, clearly concluded that the offender intended to have sexual relations with Ms CA. It is clear that when she refused to participate he became violent and caused the actual bodily harm I have described. Notwithstanding the actual bodily harm, although serious, it was not substantial, resulting only in bruising and discomfort to the jaw, not requiring any significant medical treatment. The offence was objectively serious and in my assessment the severity was at or just below the mid range for this type of offence.

9. Count 2 involved sexual intercourse without consent in respect of Ms DP. Similarly this offence did not involve planning and occurred after an invitation to the offender to attend at the motel room. Ms DP was then aged eighteen. An act of oral sexual intercourse took place in the bathroom which, the jury concluded, she did not consent to by reason of fear having regard to the events involving Ms CA. There were no express threats made by the offender to Ms DP, nor did she actively protest to the effect that she did not wish to participate in sexual intercourse. In those circumstances I am satisfied that the offender’s knowledge of her absence of consent, that is, his guilty state of mind in that regard, was formed recklessly because he failed to consider whether or not Ms DP was consenting and went ahead with the act of sexual intercourse because he never turned his mind to the question of consent even though he realised the possibility that she was not consenting. The offence was objectively serious, but for these reasons, in my assessment, the severity was below the mid range, albeit just below that mid range, for this type of offence.

10. Counts 3 and 4 relate separately to each complainant. It could not be said that these offences did not involve some degree of planning but I take no additional account of that as I agree with the submission that this was an essential part of the nature of these offences. The offences also involved threats of personal harm and, in the case of Ms CA, the threats were made on more than one occasion and included threats against her family. Whilst no violence occurred, nor was there any actual interference with the course of justice in the ultimate outcome, it must be remembered that these offences strike at the integrity of the judicial process and as such are deserving of a sentence reflecting a significant element of deterrence. In the case of Ms DP, being Count 3, the offence was objectively serious and I assess that severity at below the mid range for this type of offence. In the case of Ms CA, however, I assess the objective severity at the mid range for this type of offence.

11. The offender has previous criminal convictions as to minor matters of goods in custody occurring some nine or ten years ago but these are not relevant to the current offences for which I am sentencing him.

12. This is his first time in gaol. During the time he has been in prison he has been housed in protective custody. This has meant that he has not been able to participate in the full range of prison activities such as employment. This is likely to be the situation for the full term of his imprisonment.

13. It was agreed by defence counsel and the Crown that the period of imprisonment already served is to be taken into account such that the starting date for the sentences should be 27 February 2010.

14. The offender did not give any evidence either at the trial or at the sentence hearing. There were, however, some testimonials to which I will refer in due course.

15. It is evident from the pre-sentence report provided by the Probation and Parole Service that the offender remains in denial as to his guilt in relation to these offences. As a result he has demonstrated no remorse or contrition. Similarly, he has shown no insight “with respect to self-responsibility in regards to sexual boundaries”.

16. Indeed, he apparently expressed surprise at the outcome of the trial and continues to maintain his denial of physical contact with the younger victim Ms CA, notwithstanding the objective corroborative evidence as to the injuries he inflicted upon her. He presented himself to Probation and Parole “as the victim of defamation and acts of a revengeful ex-girlfriend.”

17. In summary then, there are no aggravating factors to be taken into account but there are a number mitigating factors to which I have adverted. In addition there are relevant subjective factors. In this regard I turn to the psychological report tendered and to the testimonials tendered.

18. The offender is a single male now aged thirty-one. He was twenty-eight at the time of the offences. Prior to imprisonment he was in regular employment since leaving school. He was raised by his mother for the first six years of life and then had no contact with her for twenty years. He presented to the psychologist as severely depressed with symptoms of self disturbance, appetite disturbance, weight loss, impaired concentration, distractibility, apathy, lack of energy, emotional liability and teariness.

19. In relation to the testimonials, these establish that prior to these offences this offender was a well-behaved young man. Indeed there is evidence of him having participated in the community in a number of ways that were positive. I am grateful to Mr Conwell for his dot point summary on page 2 of his written submissions where he outlines some of the essential features of those testimonials. These include descriptions of the offender as a man who is generous and compassionate, always keen to help people in need, highly regarded in the community for volunteer work, had sound family values, was well-mannered with high moral and social values, who participated regularly in volunteer work. Apart from the description of him as a man with high morals and social values, I accept all of the other matters set out in the testimonials.

20. Counsel made some submissions as to the prospects of rehabilitation. These included his previous good character, his strong family ties, his age and the absence of convictions relevant to these types of offences. Unfortunately, an assessment of the risk of sexual re-offending has not been carried out on the offender due to his movement between Correctional Centres. This will be carried out after sentencing through the Probation and Parole Service Sex Offenders Programmes Unit with a view to identifying static and dynamic factors contributing to the offences and to enable referral of the offender to appropriate therapeutic programmes. A minimum of twelve months is required to enable assessment and programme participation. Only after that is completed will he be able to be assessed for participation in community maintenance programmes and the level of monitoring required by the Service.

21. Having regard to these factors, and in addition to the matters that I have set out from the psychological report and the testimonials, I conclude that there are in fact good prospects of rehabilitation in respect of this offender. Having regards to the matters to which I have adverted, there are a number of circumstances involved here which are relevant to the assessment of the non-parole and parole periods and their relativity. I find special circumstances.

22. Turning to the question of totality I observe that sentences for multiple offences should generally only be made concurrent where the sentence for one offence comprehends the criminality of the other offences. In this case there were separate victims and in my view the offences here were separate and distinct, and each one involved separate and additional criminality. Accordingly wholly concurrent sentences would not be appropriate. In my view, however, the overall criminality in respect of these offences requires only that the sentences be partially accumulated, or at least that some of them should be partially accumulated.

23. JIRS statistics were presented to me. Such statistics can only ever be used as an indicator and each individual sentence must be tailored to the specific circumstances involved. Having regard to the very small sample involved in the statistics presented I believe I should not have significant regard to them in this case.

24. Mr Ayoub, on being found guilty by the jury you are convicted of each of the four offences.

On the third count I sentence you to a fixed term of imprisonment of nine months to commence on 27 February 2010 and to conclude on 26 November 2010.

On the fourth count I sentence you to a fixed term of imprisonment of twelve months to commence on 27 May 2010 and to conclude on 26 May 2011.

On the first count I sentence you to a fixed term of imprisonment of two years to commence on 27 August 2010 and to conclude on 26 August 2012.

On the second count I sentence you to a non-parole period of imprisonment of two years to commence on 27 February 2011 and to conclude on 26 February 2013. I set an additional period of imprisonment of eighteen months from 27 February 2013 to 26 August 2014.

The total sentence is, therefore, four years and six months with an effective non-parole period of three years. I order that you be eligible for release to parole on 26 February 2013.