R v Bektasovski

[2021] NSWDC 304

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bektasovski [2021] NSWDC 304

Hearing dates:

30 March 2021

Decision date:

30 March 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 5 years 6 months with a non- parole period of 3 years 4 months.

Catchwords:

CRIME – Sexual intercourse without consent - Assault with act of indecency

SENTENCING — Relevant factors on sentence —sentence after trial - victim impact - young offender - strong subjective case

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act1999

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

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 Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

Tepania v R [20018] NSWCCA 247

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497

parolesupervisionandreoffending.pdf

Category:

Sentence

Parties:

Remzi Bektasovski (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr M Johnston (for the offender)
Mr M Fox, Crown Prosecutor

Solicitors:
Morrisons Law (for the offender)

File Number(s):

2019/00105067

Publication restriction:

The name of the complainant is not to be published, nor is any information, picture or other material that leads to the identification of the complainant or any other child witness: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.
In this judgment the complainant will be referred to by a pseudonym.

sentence

Introduction

1. On 29 January 2021 a jury, by majority, convicted Remzi Bektasovski of three serious offences:

1. Having sexual intercourse with the complainant without her consent, knowing she was not consenting; s 61I Crimes Act 1900.

2. Assaulting the complainant and at the time of the assault committing an act of indecency on her; s 61L Crimes Act 1900.

3. Having sexual intercourse with the complainant without her consent, knowing she was not consenting; s 61I Crimes Act 1900.

2. Each offence occurred on an afternoon in February 2017 in Wollongong when the complainant visited Bektasovski’s home.

3. The jury had earlier acquitted Bektasovski of an offence of aggravated sexual intercourse without consent of another complainant. Bektasovski must have the full benefit of that acquittal. The jury could not agree on a verdict to a charge by a third complainant, also a sexual intercourse without consent. That matter is to be retried later this year. The acquittal and the conviction demonstrate the care that the jury showed to this matter. The benefit of the doubt was given in the trial for the first complaint where there was some ambiguity in the evidence about lack of consent and the offender’s ability to know consent had been withdrawn. But there was a conviction where that evidence was unequivocal. In the matters for sentence the complainant did not consent and, consistent with the jury verdict, it is clear that they not only rejected his account but they found that he knew the complainant was not consenting.

4. Bektasovski was remanded in custody following his conviction. These were his first criminal convictions. He was, until his conviction, regarded by many as a person of good character with a promising future as an apprentice carpenter and popular local DJ.

5. The complainant was then aged 17, Bektasovski was 18. The complainant did not know him well. They had only met on Facebook and then in person earlier the day of the incident. She had attended his home so that he could help her download a computer programme for a microphone she used for her singing hobby. The events took place in the spare room at the rear of his family home.

Facts for sentence

6. The complainant’s version of events was denied by the offender. In his evidence at trial he admitted to acts of intercourse but said they were initiated by the complainant. By their verdicts the jury must have rejected that version and accepted what was said by the complainant. I propose to sentence on her version of events, a version consistent with the verdicts and the logic of events as she described them: particularly at transcript TT 156-170.

7. When the two were alone in the room behind the house, and after Bektasovski had failed to fix the problem with her computer, he asked the complainant for a hug. He then groped her breasts and tried to rub her vagina over her clothing, he tried to kiss her but she shut her mouth and tried to pull away. Eventually she gave in and kissed him back. After a while she pulled away and hesitating but he then pulled her on top of him. She told the jury he was “very persistent, but I guess he took me being awkward as a joke”.

8. Bektasovski then tried to take the complainant’s top off. He told her he would rip it off, so she took it off herself rather than have it damaged. He was, as she described it, “dry humping” her. He was at that stage, she said, very forceful and he put a lot of pressure on her vagina, it hurt her. He kept trying to push her head down on his now exposed and erect penis. She told him many times that he was hurting her and not to pull on her hair. She kept her resistance up. She was telling him “No.” After a while she said that if he let her look at her phone she would do what he asked. She said this was because she felt sure she could not get away. She then gave him oral sex for “about 30 seconds, if that:” That is the first s 61I Crimes Act 1900 matter for sentence.

9. She pulled away and said that was enough. He persisted and pushed her head back towards his penis, he grabbed her scalp from the top of her head. At this stage a relative spoke from outside of the room. The complainant used this opportunity to move away, she grabbed her clothes and went into a little laundry off the room which they were in. The offender followed and grabbed her, he took her to near a sink and a washing machine. She told him that she did not want to have sex with him; he said they were not going to have sex; He tried to spin her around and he tried to pull her pants and underwear down as he had her bent over the sink. Her forehead was pressed against the wall. She said that she was “scared, kind of panicking:” This is the second count, a s 61L matter, for sentence.

10. The offender eventually got her pants and underwear down as she let go of them after he said he was not going to have sex with her. She asked him to promise that he would not put his penis inside of her, he said he would only rub the tip against her vagina. At this stage she was still bent over the sink. The offender rubbed his penis against her vagina and then shoved it inside her with force, as she said to the jury, “the whole way in, not slowly at all”. This hurt her and she felt pain in that area. She started to cry as he was doing this. He thrusted in and out of her vagina and this went on for a short time, “not even a minute”. The offender ejaculated half inside of her and half on her buttocks: This is count 6 in the original indictment, the second s 61I matter for sentence. He then left the room. Soon after, the two got dressed and left the home.

11. At this stage the complainant’s father was waiting outside in the street, arrangements had been made for him to give her a lift home. Although her father noticed her distress she did not tell him what occurred at that stage, however, later that day she told a close school friend and the friend’s mother what had occurred.

Assessment of objective seriousness

12. The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent and sexual assaults. The focus must be on the acts themselves. While the form of penile penetration is not determinative of seriousness the character of the assaults, including the extent and degree of physical contact involved in the act of penetration, is very relevant. As here unprotected penile penetration of any form carries the risk of disease and, of the vagina, pregnancy. Also relevant is the time over which the act occurred, whether the act was accompanied or associated with other physical violence.

13. Here while the acts making up each count were brief, and each charged act formed part of a course of conduct, they show a degree of persistence and force and overbearing behaviour by the offender towards the complainant over some time. She was not free to leave, she was alone with the offender in an unfamiliar location. He ignored her pleas and clear indications that what he was doing was not wanted. He ignored her saying no. He ignored her as a person. He hurt her. He showed no concern for her at all and his evidence at trial makes clear he seems to have convinced himself that she somehow wanted him to do what he did.

14. Consistent with the jury’s verdict and the logic of events as I find them it is clear he was thinking only of himself. I accept that his actions were opportunistic and unplanned. He did try to fix her computer. The initial act of oral intercourse was brief, but the coercive conduct continued. Promises were made to gain compliance and those promises were broken. Again, he thought only of himself and a degree of deception was involved in the third count.

15. The act of penile/vaginal intercourse was also short, but the location belies any suggestion of consent and was, in itself, a demeaning place for these acts to have occurred.

16. Each act was part of a sustained and degrading physical and mental assault upon the complainant. Although there was no direct physical injury the act of penile/vaginal intercourse did cause the complainant pain and other harm has resulted as was made clear by the complainant’s evidence, both at trial and the Victim Impact Statement which is before me.

Victim Impact Statement

17. The victim impact statement, exhibit  B, contains some material which does not fall formally within the definitions in the Crimes (Sentencing Procedure) Act 1999, but it is a matter I can and should take into account. Tragically, it shows exactly the sort of reaction one might expect from a matter such as this. The complainant told the Court that since the assault she has questioned her own sanity and questioned her own self-worth, at times she has hated her body. She told me how she felt used and damaged. She told me how she scolded herself rather than blaming the offender. She struggles and finds difficulty finding peace in her life. She spoke of the permanent toll on her life by this incident.

18. She accepted that she did not suffer any physical injuries, like cuts and bruises, but she told me, “I suffered from internal pain and muscle tension, reminding me for days what had happened”. She has not sought professional help and she has not been able to continue with her favourite hobby. The microphone, the catalyst for the events, has never been used because it reminds her of what happened. She spoke of the heavy toll on herself and her family, particularly her father. My focus must be on the impact upon her, but the toll that she believes this event has had on her father has had an impact on her as well. He is, as she said, her biggest support and support system. She told me the impact of the events on her studies and told me she still suffers random panic attacks and struggles with anxiety.

19. She concluded by saying, “I have been able to work towards acceptance and recovery. Situations like these have an ability to teach you a lot about yourself and I believe wanting to learn and get better is the first step towards recovery”.

Subjective case

20. I have the benefit of a report from forensic psychologist Ms Bennett and references from family and friends. It is clear Ms Bennett, while she listened to and carefully responded to what she was told by the offender, strove to present the Court with an objective psychological opinion that did not simply parrot the views of the offender. I can and do rely upon that report and her conclusions.

21. In his written submissions Mr Johnston of Senior Counsel, who appeared at trial and on sentence, set out at para 31, MFI 2, dot points which succinctly summarise the subjective case for the offender. They are accepted by the Crown.

22. In short compass, the offender is now 22. He was born and raised locally. He had a positive childhood and has strong support from a loving extended family. That support will continue. Although at school he had average grades he was able to, on finishing Year 12, take up the offer of a very good apprenticeship and he worked until he was gaoled. That career is still available to him and work is available when he is released.

23. He has a large number of pro-social friends; one protective factor when anyone is imprisoned. Gaol, particularly in the COVID-19 era where personal visits are not allowed, can often break pro-social connections, it can also lead to associations with criminals in gaol; which can have a crime producing rather than a rehabilitative effect. Strong pro-social connections with family and friends is a positive indicator for rehabilitation and a sentence should, if at all possible, not be of such a length as to break those bonds.

24. The offender was married for a short period. He does not report any adverse sexual or psychological problems. He has a limited history with alcohol and reports no drug history.

25. As is his right he maintains his innocence. He is not to be punished for that, but he cannot get the benefit of an early acceptance of responsibility or demonstrated remorse often allowed by sentencing judges.

26. Ms Bennett assesses static dynamic factors that decrease and elevate his risk of further offending. To her he expressed no overt attitudes that support or condone sexual violence. He expressed similar views when he gave evidence in court. The jury, by its verdict, obviously rejected those assertions. Ms Bennett notes that these comments are at odds with the facts found by the jury and the complainant’s account. She suggests that there may be an overinflated self-confidence shown by the offender and associated problems with self-awareness. She says his risk of future offending is highly relevant to whether he has cognitive distortions about sex and consent, whether the matters for which he was convicted show that he really does not understand the need for appropriate sexual boundaries. Proceeding on the basis of the conviction, there is a clear presumption that he does not in my opinion.

27. His denial of the offending makes him less amenable to treatment but in any event he would be, in Ms Bennett’s opinion, classified by Corrective Services as a low risk sex offender and he is unlikely to qualify for the high intensity programs presently available in custody. He would be amenable to community-based treatments and engagement with such treatments would reduce any risk of reoffending.

28. It may be relevant when he becomes eligible for consideration for parole because the State Parole Authority will not release him if he is not able to meet obligations set out in s 135 of the Crimes (Administration of Sentences) Act1999.

29. It is a very powerful subjective case. The references are consistent with the evidence at court. He is a young man of considerable promise. He is loved and he loves. The material before me is totally inconsistent with the facts found proved. He was a talented DJ and musician, a hard worker, involved not just with his carpentry trade but with the family martial arts business. He was actively involved in charity work and his martial arts. If he continues along the lines outlined in the references before me his prospects remain good.

Guidance

30. Every offence and every offender requires individualised treatment by the Courts. I have to take guidance, however, when I come to fix a penalty, from a number of sources. They include here the maximum penalties prescribed by Parliament and the standard non-parole periods, they include decisions of other courts, particularly those designed to give guidance, and, of course, the purposes of sentencing which here include the deterrence of this offender and others from committing similar crimes and the need to give proper recognition to the harm done to the complainant and the community.

31. The s 61L offence carries a maximum penalty of five years. It has no standard non-parole period. The s 61I offences carry maximum penalties of 14 years, the standard non-parole period is seven years.

32. The standard non-parole period represents the non-parole period for an offence taking into account only the objective factors affecting the relative seriousness of an offence and relates to matters which would fall within the middle of the range of seriousness. I am required to give content to it. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120 made clear, I cannot engage in a staged approach to sentencing: at [28]. A process of comparing and contrasting the offences for sentence which carry a standard non-parole period with some abstract one is not necessary nor is it necessary I identify features of the offence which were or not taken into account in considering how the standard non-parole period is to be applied by me: see Tepania v R [20018] NSWCCA 247 [103] to [120].

Structure

33. I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence, in this case it will be an aggregate sentence, is just and appropriate to the totality of Bektasovski’s offending behaviour: see Mill v The Queen (1988) 166 CLR 59 at 62-63, Nguyen v The Queen [2016] HCA 17.

34. One sentence here could not encompass the criminality of all that occurred. There can be, however, considerable concurrence, and so far as the indecent assault, complete concurrence with the third count because it was preparatory to it. There was one relatively short offence. The offences had common features and the purposes of sentencing apply to each offence and those purposes overlap: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

35. Each charged sexual intercourse offence was separate and discrete and each requires individual punishment. There must be some accumulation to reflect what occurred so far as each act is concerned, but it must be recognised that the indecent assault was preparatory to the second act, of penile vaginal intercourse, and integral to it and there should be no double counting; matters which apply equally to both offences. An aggregate sentence will allow, in my view, for a just outcome.

Special circumstances

36. It is suggested, and not opposed by the Crown, that I make a finding of special circumstances. My findings in relation to objective seriousness and the subjective case for the offender provide reasons for departure from the standard non-parole period, they also justify a finding of special circumstances. That said, the minimum period for which the offender should be imprisoned must also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].

37. It is important to note that studies reveal that offenders who receive parole supervision upon release take longer to commit new offences and are less likely to commit new indictable offences than those who are released unconditionally into the community. Given Ms Bennett’s risk assessment and the risk that the offender still suffers cognitive distortions, the longer he is monitored and supervised in the community the better for everyone: see Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.

36. The offender was only 18 when this offence was committed. He is still a young man. He still has a lot of growing up to do; he still has a lot of living to do. I am sure that his time in custody will enable him to reflect on what he did.

37. A degree of sensitivity is always required when dealing with young men. Maturity is not necessarily based on a person’s actual age. The offences before me demonstrate a degree of cognitive, emotional and psychological immaturity. I am sure that they contributed to the commission of this offence. That cannot excuse what he did, but it is a matter, well supported by both academic literature and authority, the Court should take into account.

38. Where someone is still immature they do tend to at times act in ways that - where someone offends for the first time someone has good prospects for leading a future life after they have served their sentence. The Courts acknowledge that their rehabilitation can at times take precedence over a retributive or deterrent sentence. It is recognised that those who have not formed settled criminal habits could be adversely affected by lengthy periods in custody. And those periods in custody can cause more damage to the community when they are released than if they were given an opportunity to prove that they can lead a law-abiding life in the community; principles set out in a number of cases and I will have the references added to the judgment if this judgment is ever taken out. So much is acknowledged by the submissions of Mr Johnston and accepted by the Crown.

Submissions

41. Mr Johnston and Mr Fox, Crown Prosecutor, have provided comprehensive written submissions. They address all relevant issues. They were complemented by careful written submissions which took me to matters in dispute between them. There is no real dispute as to the relevant principles I should apply. There was some dispute and discussion about what weight should be given to some factual matters and the need for care in the terminology that I use so as not to engage aggravating factors which are not relevant to this sentencing proceedings. Those submissions have informed this determination.

Synthesis

42. How then to synthesize all of those matters? Bektasovski’s background, age, relatively immaturity combined with the fact that he has no prior criminal record and this will be his first period of incarceration, during the COVID epidemic, warrant an element of leniency. The mitigating circumstances can go only so far. Objectively serious offences were committed against a young woman who was alone with the offender in an unfamiliar environment. The complainant made her lack of consent to what was occurring unequivocally clear, she was ignored. Bektasovski thought only of himself. He still seems surprised by this, indicating continuing cognitive distortions. He is not the man he thinks he is or who deserves the respect of others although their support is welcome. It appears he has no real idea of the damage he caused. It appears these cognitive distortions still persist. If they are not addressed he will be at risk of offending again.

43. Bektasovski offended against a young woman who thought he was only going to help her with her computer microphone problems. There was no sexual agenda on her part. His actions were not wanted and he well knew this. The consequences of his crimes to her were spelt out in the victim impact statement and her evidence to the Court at trial. As a consequence of his crimes Bektasovski will lose his liberty and, at least for the moment, his dreams are in ruin.

44. For crimes such as these retributive sentences are often demanded and imposed. So much is made clear by the standard non-parole period and the maximum penalty. But given his youth, given his background, given his strong supports, while a harsh sentence must be imposed many of the retributive elements are not required. But he has to understand, and come to understand, the consequences of acting against others without their consent. Importantly, any sentence must, and using the blunt instrument of time in custody and time on parole, operate to ensure that the dignity of the complainant is vindicated and to express the community’s disapproval of this serious offending.

Orders

45. I convict the offender of each account.

46. In relation to Count 1, sexual intercourse without consent, as it carries a standard non parole period, I indicate a sentence of 3 years 6 months with a non-parole period of 2 years 3 months.

47. In relation to Count 2, assault with act of indecency, I indicate a sentence of 1 year.

48. In relation to Count 3, sexual intercourse without consent as it carries a standard non parole period I indicate a sentence of 4 years 6 months with a non-parole period of 2 years 8 months.

49. The aggregate sentence is one of five years and six months imprisonment. There will be a non-parole period of three years and four months and commence on 29 January 2021. The offender will be eligible for consideration for parole on 28 May 2024. There will be a parole period of two years and two months, the total sentence expiring on 28 July 2026.

AUDIO VISUAL LINK CONCLUDED AT 1.10PM

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Amendments

07 July 2021 - Catchwords

12 July 2021 - Amended to include catchwords.

Decision last updated: 03 June 2025