R v Aziz (a pseudonym) - [2020] NSWDC 854

District Court

New South Wales

Medium Neutral Citation: R v Aziz (a pseudonym) [2020] NSWDC 854
Hearing dates: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of eight years and six months with a non-parole period of five years six months

Catchwords:
CRIME — Child sex offences — Indecent assault person under 16 years of age- A domestic violence offence - Aggravated sexual intercourse - Victim <16 years - procure a child for unlawful sexual activity
SENTENCING — Relevant factors on sentence — act of indecency with a child with a disability

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
BT v R [2010] NSWCCA 267
LB v R [2019] NSWCCA 151
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v the Queen (2011) 244 CLR 120
Nguyen v The Queen [2016] HCA 17
R v Edwards (1996) 90 A Crim R 510,
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Tepania v R [20018] NSWCCA 247 [103]

Texts Cited:
Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011

Category: Sentence
Parties: Michael Aziz (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr Thomas Woods (for the offender)
Ms Fleur Sullivan, Crown Prosecutor
Solicitors:
Michael Vaughan & Co (for the offender)

File Number(s): 2018/00098510
Publication restriction: Pseudonyms have been used for the names of the accused and the complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes

SENTENCE – EX TEMPORE REVISED

Introduction

In 2018 Quinn, a pseudonym, complained to her mother that her father's brother Michael Aziz, a pseudonym, had touched her in a sexual way. The police were called. Quinn was interviewed and Aziz was charged with nine offences, all said to have occurred in his home in Southern Wollongong between October 2016 and February 2018. In July 2020 a jury heard those allegations and on 4 August 2020, Aziz was found guilty on all nine counts. Aziz must now be sentenced for his crimes.

The facts of sentence

The complainant's evidence-in-chief was given primarily in the form of Joint Investigation Response Team (JIRT) interviews with a police officer. The jury, by its verdicts, obviously accepted that account. I see no reason to depart from the evidence that has substantiated those verdicts. In summary:

Count 1: The charge of aggravated indecent assault relates to the first time that Quinn says the offender did something of a sexual nature to her. She was at his home and in bed in her cousin's bedroom. Her cousins were in another bed. The offender came over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Aziz (a pseudonym)

Details

AGLC: R v Aziz (a pseudonym) [2020] NSWDC 854
Case: [2020] NSWDC 854
Decision Date: 16 October 2020

CaseChat Overview and Summary

The case of R v Aziz (a pseudonym) dealt with serious child sex offences committed by the defendant against a child under 16 years of age, including indecent assault and aggravated sexual intercourse. The case was heard in the County Court of Victoria. The defendant, Aziz, was charged with multiple counts of child sexual abuse, which were alleged to have been committed over a period of time against a child who had a disability. The case raised significant legal issues around the appropriate sentencing for such serious offences, particularly in light of the victim's vulnerability and the aggravating circumstances of the offences.

The court was required to determine the appropriate aggregate sentence for the defendant, taking into account the severity and nature of the offences, the vulnerability of the victim, and the principles of sentencing for such crimes. Key issues included the need for punishment, deterrence, and rehabilitation, as well as the protection of the community. The court also considered the impact of the offences on the victim and the role of any mitigating factors, such as the defendant's lack of a prior criminal record.

In delivering the judgment, the court emphasised the gravity of the offences and the significant harm caused to the victim. It noted the aggravating factors, including the defendant's position of trust and the victim's disability, which made the offences particularly heinous. The court also highlighted the importance of deterrence and the need to send a strong message that such crimes would not be tolerated. After weighing all the relevant factors, the court determined an aggregate sentence of eight years and six months imprisonment, with a non-parole period of five years and six months. This decision aimed to achieve a balance between punishment, deterrence, and the protection of the community while also considering the specific circumstances of the case.

Orders

Orders of the court

Aggregate sentence of eight years and six months with a non-parole period of five years six months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Aziz (a pseudonym) [2020] NSWDC 854
Hearing dates:	16 October 2020
Decision date:	16 October 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of eight years and six months with a non-parole period of five years six months
Catchwords:	CRIME — Child sex offences — Indecent assault person under 16 years of age- A domestic violence offence - Aggravated sexual intercourse - Victim <16 years - procure a child for unlawful sexual activity SENTENCING — Relevant factors on sentence — act of indecency with a child with a disability
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	BT v R [2010] NSWCCA 267 LB v R [2019] NSWCCA 151 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v the Queen (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17 R v Edwards (1996) 90 A Crim R 510, R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Tepania v R [20018] NSWCCA 247 [103]
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011
Category:	Sentence
Parties:	Michael Aziz (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Thomas Woods (for the offender) Ms Fleur Sullivan, Crown Prosecutor Solicitors: Michael Vaughan & Co (for the offender)
File Number(s):	2018/00098510
Publication restriction:	Pseudonyms have been used for the names of the accused and the complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes