R v Emal Zazy - [2018] NSWDC 297

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Emal Zazy [2018] NSWDC 297
Hearing dates: 2 – 6 July 2018
Decision date: 17 October 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence imposed. For orders see [80]

Catchwords: Indecent assault; sexual intercourse without consent; partial accumulation on sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bravo v R [2015] CCA 302
Diaz v R [2018] NSWCCA 33
Hoskins v R [2016] NSWCCA 157
Ibbs v R (1987) 163 CLR 447
Pearce v R (1998) 194 CLR 610
R v AJP [2004] NSWCCA 434
R v Daley [2010] NSWCCA 223
R v Da Silva (Unreported NSWCCA 30 November 1995)
R v Edwards (1996) 90 ACrimR 510
R v Hibberd (2009) 194 ACrimR 1
R v King [2009] NSWCCA 117
R v Peachey [2008] 187 ACrimR 152
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Emal Zazy (Offender)
Representation:
Counsel:
C J Watson (Offender)
Solicitors:
G Whitaker (Crown/Trial Advocate)

File Number(s): 16/247223
Publication restriction: Nil

REMARKS ON SENTENCE

On 2 July 2018, the offender was arraigned on an Indictment containing the following charges:

On the 31st day of July 2016 at Bondi Beach in the State of New South Wales, did assault UP, and at the time of the assault did commit an act of indecency on UP. The offence was pursuant to s 61L of the Crimes Act 1900. The maximum penalty proscribed is a term of five years imprisonment.

On 31 July 2016 at Bondi Beach in the State of New South Wales, did have sexual intercourse with UP without the consent of UP, knowing she was not consenting. The offence was pursuant to section 61I of the Crimes Act 1900. The maximum penalty is a term of fourteen years imprisonment. There is a Standard Non-Parole Period of seven years imprisonment.

The offender entered a plea of guilty upon arraignment to Count 1. On 6 July 2018, the jury returned a verdict of guilty in respect of Count 2. The Indictment contained a further charge in the alternative to count 2, which was therefore not considered.

Circumstances of the offending in respect of Counts 1 and 2

The following are my findings which are consistent with the verdict of guilty. On the evening of 30 July 2016 the victim finished work at around 11.30pm and joined a group of friends at a city hotel. They left the hotel a few hours later and went to the home of Grant and Ryan Lansdowne at Bondi. There were a group of people there, including the offender, who socialised into the early hours of the morning. The evidence established that alcohol and cocaine were consumed.
During the party, the victim met the offender. He asked her to “Come and sit with me” and she said “No”. He then asked, “Are you sure? Do you want to sit in my lap?”, and she said “No”. Later, he had tried to kiss the victim in the hallway, and she had again said “No”.
At approximately 8am on 31 July 2016, the victim was asleep with Ryan Lansdowne in his bedroom. Ryan Lansdowne got out of bed and went to have a shower. While he was away, the offender, who had been present at a party at the premises during the early hours of the morning, then got into the bed behind the victim. I am satisfied beyond reasonable doubt on the evidence that he then groped the victim’s breasts with his left hand underneath the shirt she was wearing. He did that for between two and five minutes. That is the conduct that constitutes Count 1 on the indictment.
The offender then placed his left hand underneath the back of the underpants that the victim was wearing, and touched the outside of her vagina. He then inserted two fingers into her vagina and moved them in and out slowly for a period of a few minutes. The victim had been asleep, and did not know that he was the person in bed with her. She in fact believed that that person was Ryan Lansdowne. Whilst this was happening, the bedroom door opened, and Ryan Lansdowne entered the room. The victim at first thought that he was Grant Lansdowne, Ryan’s identical twin brother, but then realised that it was Ryan Lansdowne. She turned and then discovered that the offender was in the bed behind her. He laughed and said to the victim, “Did you think I was Ryan?”.
The victim then asked that he get out of the bedroom and kept asking him to get out until he left.
The digital penetration by the offender of the victim with two fingers penetrating her vagina constituted the offending in Count 2 on the Indictment.

The sentence hearing

The sentence hearing took place on 28 September 2018. The Crown Sentence Summary became Ex A. It included copies of the Indictment and the offender’s criminal antecedents, which included an offence of supply prohibited drug on 5 October 2007, for which he was sentenced on 11 June 2009 in the Campbelltown District Court to a term of imprisonment for a period of 18 months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). He had previously been sentenced in the Local Court to a s 10 Bond for 12 months to be of good behaviour in respect of a shoplifting offence, and in 2013, had been sentenced by way of a fine in respect of an offence of destroy or damage property.
Exhibit A also included a Pre-Sentence Report under the hand of Ms A Faith, dated 24 August 2018. The report set out the offender’s family and social circumstances. He had been born in Afghanistan and migrated to Australia in 1997, the eldest of six children. A brother had been diagnosed with a serious developmental disorder and his father has a degenerative vision impairment. His parents had separated as a result of domestic violence in the relationship. The offender, who had been self-employed in the construction industry for a period of nine years, purchased a home for his mother, two brothers and his sister to live in. He was still actively involved in his business and employed two staff on an ongoing basis.
Under the heading “Factors relating to the offending”, the offender advised the author that he was intoxicated during the commission of the offences, but denied that his alcohol consumption was generally problematic. An assessment for recidivism placed him at the average risk of re-offending in comparison to other adult sexual offenders. Under the heading, “Attitude to offending”, the author stated:

“Mr Zazy agreed in part with the police facts, and denied that he digitally penetrated the victim.
Reporting to be intoxicated during the commission of the current offences, Mr Zazy stated that it was his intention to ‘play a joke’ and he indicated that he did not anticipate the victim’s reaction.”

The author noted the offender’s identified criminogenic needs are:

Sexual offending

and he was assessed as a low risk of re-offending. He had reported that he commenced psychological counselling to address issues related to a mental health condition on 14 November 2017, and was attending on a fortnightly basis. He had purchased another home for his wife of two years in 2016. The author concluded:

“Reporting to being intoxicated during the commission of the current offence, Mr Zazy denied that he digitally penetrated the victim.”

She concluded that he would benefit from a period of supervision by Community Corrections, however, he was assessed as unsuitable for a Community Service Order, due to the unavailability of suitable Community Service work.

The offender’s evidence

The offender relied on a bundle of documents which became Ex 1 and included Exhibits 1.1 through to 1.22. The exhibits included two reports from his treating psychologist, a large number of testimonials from the family, friends and business associates, and a number of medical documents relating to the offender’s brother, Faisal Zazy, who suffers Autism Spectrum Disorder, and a moderate-severe intellectual disability, together with medical documentation relating to the offender’s father’s vision impairment.
In his report dated 23 August 2018, Mr Woodhouse, psychologist, recorded this statement of the offence by the offender:

“Mr Zazy indicated that he kept on telling the others at the party about his wife, essentially singing her praises. He reported that he went into a room and got into bed thinking he was cuddling up to his then fiancée. This was clearly not the case and he left the room. He was hazy about some of the recollection, although that would be congruent with his being highly intoxicated. He believed that he probably did touch the woman’s breast, because that it would he would have done with his wife. He did not believe he had done any digital insertion as that is not congruent with his normal sexual behaviour. He was also anxious about how hazy his own mind was.”

Mr Woodhouse went on to state that the offender was “horrified at the idea of non-consensual sex of any kind”. He stated that the offender’s “empathy and remorse appeared genuine”. He spontaneously described his behaviour as “stupid” and acknowledged the impact of drugs and alcohol, together with the “potential vulnerability of others when substance abuse leads to poor behaviour”. The psychologist recorded the offender’s personal history. He had been sexually assaulted in Afghanistan from where he came at age 10. His father was the perpetrator of domestic violence towards his mother and when he was in his early 20’s, the offender had ejected his father from the family home to protect his mother. The offender had worked hard to set up a business and that enabled him to securely house his mother and family. His mother was the carer of his younger brother who had Autism.
The offender acknowledged that in his early 20’s he became involved with recreational drugs and body building, and at the time of the offence, he was an occasional user of prohibited substances.
The author opined that the offender was unlikely to re-offend. He was deeply concerned about the impact on his wife and family with the prospect of a custodial sentence. It was the opinion of the psychologist that it was the intoxicated state of the offender and consequent lack of awareness which led him to offend. His treatment was ongoing and he was committed to it. He was seeing Mr Woodhouse on a fortnightly basis.
The 11 testimonials relied on by the offender speak highly of his character as an honest, hard-working, loyal family man. It is clear that he is responsible for supporting his family both financially and emotionally, and is held in high esteem by those he employs and does business with.

Evidence of Mrs Amy Zazy

The offender’s wife, Amy Zazy, gave sworn evidence. She gave evidence of the offender’s family and his business, which she described as a “very successful business”. The offender had also helped her to establish a graphic design business, which she operated from home. She and the offender shared their finances, however, the offender paid all of the outgoings, whilst she paid for the food and groceries. In addition to their own mortgage of between $4,000 and $5,000 per month, the offender also paid a mortgage, bills and upkeep in respect of a property he bought for his mother and other family members at Blair Athol, in the range of $5,000 to $6,000 per month.
Mrs Zazy gave evidence that if her husband was sentenced to a custodial sentence, she would have to sell their home and she would move back to her own parents’ home. She gave evidence of the offender’s father’s blindness, that the offender’s mother was a full time carer for his brother, Faisal, and the fact that the offender took him to recreational activities and medical appointments on a weekly basis.
Mrs Zazy gave evidence that she and the offender had spoken often about his offending, for which he was very “regretful”. When asked what he felt about the impact of his conduct on the victim, she answered that he “can’t imagine how she feels, and that if it happened to herself, the offender would be very upset”. She described their own relationship as “very good”, he had never displayed any violence or had been sexually aggressive towards her.
Mrs Zazy gave evidence that the offender had not touched any prohibited drugs since the offence, and now only occasionally drank a beer at home. He had been going to ongoing counselling for his drug and alcohol issues. She also gave evidence that he had told her about his life as a child in Afghanistan. The family had lived in a war zone and he had seen weapons fired and a relative received a gunshot wound to her hand. He had also briefly been sexually assaulted by his uncle, a matter that he found hard to look back on and had tried to block out. The offender had also been witness to domestic violence between his father and mother, and at age 20, he had intervened and removed his father from the home.
Mrs Zazy gave evidence that the offender was a good employer of young people, that he contributed to a charity in Afghanistan for the homeless, and assisted in charitable works by sourcing materials for his local Mosque.
Mrs Zazy gave evidence that since his conviction, she had noticed changes in the offender. He was now motivated to be a better person and was undergoing psychological treatment. He was more aware of others and had not engaged in partying. He was also very supportive of her and was reflective of the events to ensure it did not happen again.
Mrs Zazy gave evidence that the offender was very worried about his offending behaviour. He acknowledged that he had to be punished, however, they intended to have a family and he contributed most to the support of his family, not only financially, but emotionally.
In cross-examination, Mrs Zazy gave evidence that the offender had made no plans for the continuation of his business if he was sentenced to a custodial sentence. There was no one else who could continue the business as he was responsible for obtaining sales and organising the work.
Further, Mrs Zazy was not aware of any measures put in place to support his brother Faisal.
In her reference, tendered on behalf of her husband, Mrs Zazy had stated:

“As his wife, I have never questioned his innocence or, his character.” (Ex 1.20).

She acknowledged that he had pleaded guilty to Count 1, an offence of indecent assault, which occurred in a bedroom at the party. He had told her that he had put his hand around a girl in the bed there. He did not tell her about the incident comprising Count 2 of sexual intercourse by digital penetration. He had told her that he was so intoxicated that “it may have happened”.

The offender’s submissions

The offender relied on a detailed written outline of submissions which set out the background to the offending. It was submitted that “the offender, the complainant and other witnesses had all consumed significant amounts of alcohol, cannabis and cocaine”. This aspect of the evidence, it was submitted, was played down as not being an important factor when considering the accuracy and reliability of the witnesses’ evidence as to what actually happened that night. The offender went on to submit that ‘whilst accepting and respecting the verdict of the jury, that he must have fondled the complainant under her shirt and he did penetrate the complainant but only for a short period of time. That period of time was significantly less than five minutes and coincided with ‘Ryan Lansdowne coming back into the bedroom”.
The offender set out principles relating to the evaluation of the objective seriousness of the offending, referring to the well known authority Ibbs v R (1987) 163 CLR 447. In respect of the digital penetration of the complainant, it was submitted that non-consensual sexual intercourse by digital penetration was generally less serious than an offence of penile penetration, referring to R v Hibberd (2009) 194 A Crim R 1 at [56], and R v Da Silva (Unreported NSWCCA 30 November 1995). However, it was submitted that the objective seriousness of the offence is wholly dependent on the facts and circumstances of the particular case – referring to R v King [2009] NSWCCA 117.
In response to a Crown submission that the offending behaviour for the offence pursuant to s 61I “falls below the mid-range but not in the low range, of objective seriousness”, it was submitted that the offending behaviour at its highest comprised five minutes of penetration with two fingers to the vagina. Whilst it was conceded that the offending was serious, it was submitted that the complainant was not “vulnerable’ as submitted by the Crown, referring to the terms of s 21A(2)(l) of the CSPA. It was submitted that the complainant did not fall into the class of persons referred therein, or an extended definition of “vulnerable”. It was submitted that she was not “completely helpless” due to any threat of violence or the administration of drugs. It was submitted that the complainant was awake as she was able to describe what was happening to her and that vulnerability must relate to the timing of the offence.
In respect of the offence pursuant to s 61L, assault with an act of indecency which involved the groping of the victim’s breasts underneath her clothing, it was submitted that the complainant must have been awake to have realised what was happening to her at the time of the offending and that the offending was not accompanied by any related aggravating aspects and therefore should be assessed at the bottom of the range of the lowest level of objective seriousness for such an offence.
It was submitted that mitigating factors arising pursuant to s 21A(3) of the CSPA were as follows:

“(a) Injury, emotional harm, loss or damage caused by the offence was not substantial;
(b) The offence was not part of a planned or organised criminal activity;
(e) The offender does not have any record (or any significant record) of previous convictions for sexual offences;
(g) The offender is unlikely to re-offend;
(i) The remorse shown by the offender for the offence, but only if,
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged an injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both);

(k) A plea of guilty by the offender (as provided by s 22 or Div 1A).”

The offender relied on numerous subjective circumstances set out in the report of John Woodhouse, psychologist, (Ex 1), and in particular, the following matters referred to in that report:

“(a) that the offender and others had consumed significant amounts of drug on the night of offending;
(b) that the offender got into bed with a person he thought was his fiancé;
(c) that the offender is unclear about what happened and that this is consistent with being highly intoxicated;
(d) that the offender is genuinely ‘horrified’ to have offended in the way he has;
(e) that he has been brought to tears when considering the impact of his offending upon the complainant and that his empathy and remorse is genuine;
(f) that the offender recognises the breadth of his offending behaviour and its relation to the use of drugs and alcohol;
(g) that the offender came to Australia at age 10 from Afghanistan;
(h) that the offender was the victim of sexual assault himself in Afghanistan;
(i) that the offender had witnessed domestic violence by his father as a young man in his 20’s and had subsequently removed his father from the family home to protect his mother;
(j) that the offender pays for the housing of his mother and autistic brother;
(k) that the offender has a successful roofing business;
(l) that the offender has had contact with illicit substances;
(m) that the offender has assisted people financially and practically;
(n) that the offender has ceased using drugs;
(o) that the actions of the offender on this night was out of character;
(p) that the offender has undergone stress and anxiety due to his offending;
(q) that the offender is concerned about the consequent hardship to his mother and wife should he go into full time custody;

(r) that the offender’s marriage continues and is an important stable that ensures he will not reoffend or consume drugs;
(s) that the offender is not the atypical sexual offender;
(t) that the offender does not seek to defend or rationalise his offending;
(u) that the offender acted in a way that is not how he would usually act but for the high consumption of drugs;
(v) that the offender actively participates in ongoing treatment with Mr Woodhouse.”

The offender also relied on the subjective matters referred to in the Pre‑Sentence report of Ms Faith, which included the following:

“(a) that the offender had completed an unsupervised s 12 bond around 2009;
(b) that he is in a stable marriage and lives in a supportive environment;
(c) that the offender came from Afghanistan at age ten and that he supports his mother, father and brother who has health issues;
(d) that the offender has become socially withdrawn since offending;
(e) that the offender has a successful business that employs staff;
(f) that risk of re-offending is ‘average’ and that if the imposition of a non‑custodial sentence took place it would be recommended that the offender be referred to the Corrections psychologist so as to assess ‘dynamic risks’ associated with his offending and necessary treatments;
(g) that if the offender went into custody, because of his ‘average risk level’ he may not be considered as a priority for specialist sex offender programs;
(h) that the offender denied digitally penetrating the complainant;
(i) that the offender’s mental health has improved with treatment;
(j) that the offender would benefit from a referral to the Community Corrections psychologist and a Drug & Alcohol counsellor.”

Under the heading, “The New Sentencing Regime”, it was submitted on behalf of the offender that the sentencing of the offender had been adjourned for reasons beyond his control. Prior to 24 September 2018, when the new sentencing legislation under the CSPA came into force, it was submitted that a realistic submission would have been made that in all the circumstances this was a matter where, if it was considered that a full time custodial sentence would be imposed, such sentence should be suspended pursuant to s 12. As a result of the amendment, this sentencing option was no longer available. It was further submitted that this was an appropriate case for the court to make a Community Correction Order in relation to the offender pursuant to s 8 of the CSPA.
In his oral submissions, counsel for the offender highlighted the hardship that would be caused to the offender’s extended family in the event that a custodial sentence is imposed. He provided significant financial and emotional support to his mother and his siblings, as well as financially supporting his wife.
Whilst conceding that the offending was serious, it was submitted that the objective seriousness for both offences fell in the bottom range for the particular offences and raised a query whether he could be punished in the community. He was undergoing rehabilitation with Mr Woodhouse, and was running a successful business. According to the evidence given by his wife, the offender had changed his behaviour and acknowledged that his drug and alcohol issues had led to his offending behaviour.
It was submitted that the offender had expressed remorse for his offending. It was further submitted that what he recalled of the events was unclear because of his level of consumption of drugs and alcohol on the night, which had affected his recollection of what occurred. Notwithstanding that, he acknowledged the jury verdict and accepted what he did as found by the jury.
It was submitted that the offender had entered a plea of guilty in respect of Count 1, and there was no dispute as to the facts surrounding that offending. He accepted what the complainant says happened. It was submitted the court would not punish a shift in his various versions of the events concerning Count 2, they merely reflected a lack of clarity because of his intoxication.
It was submitted that a Community Correction Order would allow the offender to be dealt with in a significant way and that it amounted to the same type of sanction as a suspended sentence. Given the additional conditions that could be imposed pursuant to s 88 and s 99 of the CSPA, it would ensure his rehabilitation and supervision. The offence pursuant to s 61I was described as a “one-off”, and the offender regarded it as a “ridiculous, stupid and illegal act”.
Finally, it was submitted on behalf of the offender that he could not have been the intention of Parliament to proscribe that all people who commit sexual assault offences would, as a starting point, be sentenced to custodial sentences. The court should realistically look at the lesser options available.

The Crown submissions

The Crown also relied on a thorough written outline of submissions. It included a summary of evidence in respect of the offending, which is reflected in my findings set out above. It included a submission that each of the people present engaged in various degrees of alcohol and drug consumption, including the victim, the offender and other witnesses.
The Crown submitted that the offending in Count 2 fell below the mid-range for an offence pursuant to s 61(l) of the Crimes Act, but not in the low range. The Crown submitted that the offending in Count 1 fell within the mid-range of objective seriousness for an indecent assault offence pursuant to 61L.
The Crown submitted that the victim was in a vulnerable position, being asleep when the offender entered the bedroom and was under a mistaken belief as to the identity of the offender during the course of the offences. It was submitted that the offender took advantage of those circumstances to commit the offences. Count 1 involved the groping of the victim’s breasts underneath her clothing for “a while”, a period the victim described as being “between two and five minutes”. Count 2 involved digital penetration of the victim’s vagina, during which he moved two fingers in and out of her vagina for a few minutes until being interrupted. The Crown referred to well known authorities relating to the assessment of the objective seriousness of sexual assault offences including the High Court’s decision in Ibbs v R, supra, R v Peachey [2008] 187 A Crim R 152, and R v AJP [2004] NSWCCA 434, R v Hibberd. supra, R v King, supra, R v Daley [2010] NSWCCA 223, and Bravo v R [2015] NSWCCA 302. Those authorities make it clear that there is no hierarchy for sexual acts that constitute sexual intercourse for the purposes of the criminal law.
Whilst non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration, there is no rule of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Each case will depend on its own facts, and what is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is therefore just one factor to be taken into account. Further, the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence, and the absence of an aggravating factor of physical violence does not operate in mitigation.
The Crown submitted that the victim’s vulnerability, being asleep in the bedroom of Ryan Lansdowne, facilitated the commission of the offence. The fact that the offender stated, when Ryan Lansdowne entered the room, “Did you think I was Ryan?”, showed that he intentionally took advantage of this situation.
The Crown submitted that there should be no utilitarian discount on sentence in respect of the plea of guilty to sequence 1. The factual basis for the offence remained in dispute and the victim was required to give evidence about the offence, which was challenged in cross-examination. The plea did nothing to shorten the trial or narrow the issues in dispute.
In terms of the appropriate sentence to be imposed, the Crown referred to a number of appellate authorities for the proposition that an offence of sexual intercourse without consent will ordinarily carry a custodial sentence. Having regard to the maximum penalties proscribed by Parliament, pursuant to s 61I and s 61L, and the Standard Non-Parole Period applicable to the s 61I offence, and considering the objective seriousness of the offences, the court, it was submitted, would have no alternative but to impose a significant full‑time custodial sentence. It would be in appellable error to impose a Community Correction Order pursuant to s 8. The Crown further submitted that there should be a slight accumulation of sentences to reflect the totality of criminality in circumstances where, while the offences were closely linked as a continuous course of conduct, they involved separate and distinct sexual acts committed against the victim without her consent.
In his oral submissions, the Crown submitted that it was clear that the s 5 threshold had been passed here. The very fact that the offender had submitted that a sentence suspended pursuant to s 12 would have previously been warranted indicated that a full-time custodial sentence was appropriate. The Crown had referred to Judicial Commission statistics in which only one out of 233 cases led to a non-custodial sentence. Whilst the duration of the offending here was short, the offending conduct only ceased because of Ryan Lansdowne entering the room.
The Crown rehearsed its written submissions as to the vulnerability of the victim, and the objective seriousness of the offending in both Count 1 and Count 2. Whilst there was no Victim Impact Statement tendered in the sentence hearing, it was clear from the evidence of the complainant at trial, that there had been some emotional harm.
In response to the offender’s submissions regarding hardship and extra curial punishment, the Crown referred R v Edwards (1996) 90 A Crim R 510 as authority for the proposition that what is required is evidence of exceptional hardship beyond the ordinary case. Here, the offender was an ordinary income earner, supporting his extended families. Therefore, any hardship caused to the offender’s family was within the ordinary hardship caused by imposition of a custodial sentence.
The Crown further submitted that there could be no finding of remorse. At trial, the offender’s case was that he did not touch the victim’s vagina in any way. Since the trial, he had given different versions to the author of the Pre‑Sentence Report and to his psychologist, both of which involved a denial of the offending conduct.
Finally, it was submitted that the offending here was opportunistic. The offences were each predatory acts which warrant a custodial sentence. A sentence by way of a Community Correction Order would in no way reflect community standards, the maximum penalties and Standard Non-Parole Period proscribed by Parliament for sexual assault offences. Further, the offender had been treated leniently by way of a suspended sentence pursuant to s 12 of the CSPA for a prior drug supply offence and the circumstances of this offending clearly showed that his rehabilitation in respect of that offence had failed.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A 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.”

In assessing the objective seriousness of the offence of indecent assault pursuant to s 61L of the Crimes Act, I take into account all of the circumstances. Whilst the evidence established that those present at the party in the early hours of the morning of 31 July 2016, had consumed alcohol, and/or cocaine and/or cannabis, the evidence does not warrant a finding as submitted by the offender that all of the participants had consumed “significant amounts” of alcohol and drugs.
I further find that the victim, at the time of the offending, was vulnerable, in that she was asleep in the bedroom when the offender entered the bedroom and got into the bed behind her. I am satisfied that this is an aggravating factor pursuant to s 21A(2)(l) of the CSPA, as vulnerability in that subsection is not limited to the examples provided in it. Further, I am satisfied on the evidence at trial that earlier in the night the victim had declined the offender’s advances towards her, and I accept the Crown’s submission that the offender intentionally took advantage of the fact that the victim was asleep and alone in the bedroom. In so finding, however, I make it clear that I am not double counting the victim’s vulnerability as an aggravating factor in the offending conduct. A further aggravating factor was that the offence occurred in the home of Ryan Lansdowne, pursuant to s 21A(2)(eb).
I find that the objective seriousness of the conduct of the offender in fondling the victim’s breasts for a period of five minutes, was within the mid‑range for an offence pursuant to s 61L, but towards the lower end of that mid‑range.
In assessing the objective seriousness of the offending for the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act, I have also had regard to the whole of the circumstances of the offending. The offence was constituted by the digital penetration by the offender of two fingers into the vagina of the victim for a period of up to two minutes. In R v Hibberd, supra, the Court of Criminal Appeal held, consistently with R v Ibbs, supra, that digital penetration is not necessarily less serious than penile penetration, emphasising that the seriousness of the offence turns on the facts of the case at hand – see Diaz v R [2018] NSWCCA 33 at [53]. Here, the offender only stopped because Ryan Lansdowne entered the bedroom, at which time the victim realised for the first time that it was not Ryan Lansdowne in bed with her. That the offender was taking advantage of her being alone in the bed is confirmed by him stating to her, “Did you think I was Ryan?”, when she asked him to leave the room. Having regard to the aggravating factors set out above, I find that the objective seriousness of the offending for this offence was below the mid-range, but towards the higher part of the low range. It constituted serious offending.
I do not accept all of the mitigating factors relied on by the offender pursuant to s 21A(3), as set out in [32] above. I accept that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)), that the offender entered a plea of guilty to Count 1 (pursuant to s 21 A(3)(k), however, for the reasons outlined below, I do not accept the other matters relied on by the offender pursuant to s 21A(3)(a), (e), (d) and (i).
I have had regard to the maximum penalty proscribed by Parliament for an offence pursuant to s 61L of 5 years imprisonment, and the maximum penalty for an offence pursuant to s 61I of 14 years imprisonment, together with the Standard Non-Parole Period of 7 years imprisonment for that offence. The maximum penalties for the offences, together with the Standard Non-Parole Period proscribed for s 61L are guideposts in the sentencing process.
General deterrence is important in the sentencing process. A clear message must be sent to the community and like-minded persons in the community that Parliament has proscribed lengthy maximum terms of imprisonment for such offences and that the courts will impose severe penalties in appropriate cases. Specific deterrence is also important here in that the offender must understand that he has, by his criminal conduct, caused harm to the victim and to the community generally.
I have had regard to the criminal antecedents of the offender. Whilst there was no previous offending by way of a proscribed sexual offence, in 2009 the offender had been sentenced to a term of imprisonment for 18 months, suspended pursuant to s 12 of the CSPA for supplying prohibited drugs. Any rehabilitation following that sentence had not endured, given his consumption of prohibited drugs on the occasion of this offence. He had also previously had the benefit of a s 10 bond to be of good behaviour in respect to a shoplifting offence in 2013, and been sentenced by way of a fine in respect of an offence of destroy of damage property. In assessing that criminal history, it entitles him to no leniency in the sentencing process.
I note that there was no Victim Impact Statement adduced on the sentence hearing. Pursuant to s 29(3) of the CSPA, the absence of such a statement does not give rise to an inference that an offence had little or no impact on the victim. Having observed the victim give evidence at the trial of this matter, it clearly had an emotional and psychological impact on her. The courts have long recognised the emotional trauma caused to victims of sexual offence matters, and I therefore take that into account. I do not do so, however, to aggravate the offender’s culpability for the offending conduct.
I accept that there are significant subjective factors to be taken into account on behalf of the offender in the sentencing process. He has established a successful business as a roofing contractor, and has been responsible for looking after his extended family and his wife, both financially and emotionally. Further, the testimonials tendered on his behalf speak highly of his character as an otherwise honest, hard-working and loyal man. It is clear that his business, and therefore his family, will suffer financial hardship in the event of him being sentenced to a custodial sentence.
Upon arraignment the offender entered a plea of guilty to Count 1 on the Indictment. However, the facts upon which the plea was based were disputed and the victim had to give evidence and be cross-examined in respect of that matter. For example, it was put to her that he touched her breasts on top of her shirt only, which she denied. I therefore find that given those circumstances, the offender is entitled to no utilitarian discount on sentence in respect of the plea of guilty. I have, however, taken his plea of guilty into account when considering sentence in this matter.
I do not accept that the offender is remorseful for his offending. He did not give evidence and therefore the matters recorded in the report of Mr Woodhouse, psychologist, must be viewed with some caution. The same applies to the matters recorded in the Pre-Sentence Report by Ms Faith. He had denied that he digitally penetrated the victim to the author of that report and told her that it was his intention to “play a joke”. I do, however, accept her opinion that he is a low risk of re-offending. Mr Woodhouse opined to the same effect. It was his opinion that it was the intoxicated state of the offender and his consequent lack of awareness which led him to offend. He was undergoing ongoing treatment and was committed to it.
The evidence of Mrs Amy Zazy as to the offender’s regret for his offending also must be viewed with some caution. I accept, however, that he has changed his habits since the offending and has not touched prohibited drugs and only consumed alcohol on occasions at home. I further accept that he has applied himself to his rehabilitation and was motivated to be a better person.
I also accept that there will be some financial hardship to the offender’s wife and extended family. This, however, is not a mitigating consideration, unless such hardship is established to be “wholly, highly or truly” exceptional. In R v Edwards, supra, Gleeson CJ said at [515]:

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as Senior Counsel for the Respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full time imprisonment.”

See also Hoskins v R [2016] NSWCCA 157 at [63].

I do not find the circumstances here of the financial hardship arising from the offender’s criminal conduct to be extreme so as to bring it within the principle set out in R v Edwards, supra. The evidence neither established extreme hardship nor extraordinary circumstances. The offender has had ample time to put his affairs in order whilst he has been on bail prior to the trial, and since the guilty verdict, knowing that he was facing the prospect of a custodial sentence.
Further, there should be no discount in these circumstances on the basis of remorse or contrition expressed by the offender to others. As outlined above, the offender gave no evidence of remorse and the victim was required to undergo cross-examination at the trial in respect of both offences.
As the offender is being sentenced in respect of proscribed sexual offences as defined in s 67(2) of the CSPA, an Intensive Correction Order cannot be made pursuant to s 67(1) of the Act. As outlined above, the offender’s counsel has advocated the imposition of a Community Correction Order pursuant to s 8(1) of the CSPA. The maximum term of CCO is 3 years pursuant to s 85(2) of the Act.
I do not accept the submission made on behalf of the offender that he has suffered hardship as a result of his sentencing being adjourned so that he missed the opportunity of being sentenced to a term of imprisonment of 2 years or less, and have such sentence suspended pursuant to s 12 of the CSPA. The offender had already had the benefit of a s 10 bond and a suspended sentence for a period of 18 months on a serious charge of supply prohibited drugs. The submission, in any event, implied, and I find, that the s 5 threshold has been crossed and that having considered all possible alternatives, no penalty other than imprisonment is appropriate.
In considering the question of concurrency and accumulation, I accept that the two offences were part of the one course of criminal conduct. However, they were discrete offences of escalating seriousness. In applying the principles of totality and proportionality pursuant to Pearce v R (1998) 194 CLR 610 at [45], the question is to be determined by the totality of the criminality involved. Here, I find that there should be some partial accumulation between the offences.
I find that the offender has, however, made progress with his rehabilitation and is motivated to continue that rehabilitation. I find that there are special circumstances pursuant to s 44(2) of the CSPA based on the need for the offender’s ongoing rehabilitation and the fact that this will be his first time in custody. I therefore intend to vary the statutory ratio between head sentence and non-parole period.
I intend to sentence the offender in respect of the offence pursuant to s 61L of indecent assault to a fixed term of 6 months, commencing from today.
For the offence pursuant to s 61I for which he was found guilty, I intend to sentence the offender to a period of imprisonment of 3 years with a non-parole period of 1 year and 3 months, to commence on 17 January 2019 and to expire on 16 April 2020.
The total sentence will therefore be 3 years and 3 months imprisonment, with an effective non-parole period of 1 year and 6 months commencing today.

Orders

I make the following orders:

You are convicted of the offence pursuant to s 61L of the Crimes Act 1900, that on 31 July 2016 at Bondi Beach in the State of New South Wales you did assault UP, and at the time of the assault did commit an act of indecency on UP.

You are sentenced in respect of that offence to a fixed term of 6 months imprisonment to commence on 17 October 2018 and to terminate on 16 April 2019.

You are convicted of the offence pursuant to s 61I of the Crimes Act 1900, that on 31 July 2016 at Bondi Beach in the State of New South Wales you did have sexual intercourse with UP without the consent of UP, knowing she was not consenting.

In respect to that offence, I sentence you to a non-parole period of 1 year and 3 months, to commence on 17 January 2019, and to terminate on 16 April 2020.

The balance of term will be 1 years and 9 months imprisonment commencing on 17 April 2020 and terminating on 16 January 2022.

The total effective sentence will be 3 years and 3 months with an effective non-parole period of 1 year and 6 months commencing on 17 October 2018.

You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Amendments

18 October 2018 - Anonymised victim's name.

Decision last updated: 18 October 2018

Medium Neutral Citation:	R v Emal Zazy [2018] NSWDC 297
Hearing dates:	2 – 6 July 2018
Decision date:	17 October 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence imposed. For orders see [80]
Catchwords:	Indecent assault; sexual intercourse without consent; partial accumulation on sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bravo v R [2015] CCA 302 Diaz v R [2018] NSWCCA 33 Hoskins v R [2016] NSWCCA 157 Ibbs v R (1987) 163 CLR 447 Pearce v R (1998) 194 CLR 610 R v AJP [2004] NSWCCA 434 R v Daley [2010] NSWCCA 223 R v Da Silva (Unreported NSWCCA 30 November 1995) R v Edwards (1996) 90 ACrimR 510 R v Hibberd (2009) 194 ACrimR 1 R v King [2009] NSWCCA 117 R v Peachey [2008] 187 ACrimR 152
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Emal Zazy (Offender)
Representation:	Counsel: C J Watson (Offender) Solicitors: G Whitaker (Crown/Trial Advocate)
File Number(s):	16/247223
Publication restriction:	Nil