R v Haddara
[2018] ACTSC 70
•9 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Haddara |
Citation: | [2018] ACTSC 70 |
Hearing Date: | 9 February 2018 |
DecisionDate: | 9 February 2018 |
Before: | Mossop J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a person under the age of 16 years – assault occasioning actual bodily harm – possessing child exploitation material – damage property – using a carriage service in a manner that was menacing, harassing or offensive – common assault – sexual intercourse without consent – sexual assault in the third degree – possession of an unregistered firearm – |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 53(1), 54, 55(2), 55(3)(b), 65, 116(3) Crimes Act 1914 (Cth), s 19AC(3) Firearms Act 1996 (ACT), s 177(2)(a) |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Sulemanov [2007] VSCA 288 |
Parties: | The Queen (Crown) Saeed Haddara (Offender) |
Representation: | Counsel S Gul (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 161 of 2017 SCC 162 of 2017 SCC 163 of 2017 SCC 164 of 2017 |
MOSSOP J:
Introduction
Saeed Haddara, who is now almost 20 years old, has pleaded guilty to nine offences relating to three different victims.
The first four offences relate to a young woman who I will refer to as TU. She was 15 and 16 years old at the date of the offences.
The offences are:
(a)sexual intercourse with a person under the age of 16 (CC2017/4589). This involves a contravention of s 55(2) of the Crimes Act 1900 (ACT), the maximum penalty for which is 14 years imprisonment;
(b)assault occasioning actual bodily harm (XO2017/31186). This is a contravention of s 24 of the Crimes Act, the maximum penalty for which is five years imprisonment;
(c)possessing child exploitation material (CC2017/4596). This is a contravention of s 65 of the Crimes Act. The maximum penalty is seven years imprisonment or a fine of 7000 penalty units or both; and
(d)damage property (CC 2017/4595). This is a contravention of s 116(3) of the Crimes Act, the maximum penalty for which is two years imprisonment or a fine of 50 penalty units or both.
The next four offences relate to a young woman who I will refer to as KI, who was, at the relevant time, 19 years old. The offences are:
(a)common assault (CC2017/3019), a contravention of s 26 of the Crimes Act the maximum penalty for which is two years imprisonment;
(b)sexual intercourse without consent (CC2017/3021), a contravention of s 54 of the Crimes Act, the maximum penalty for which is 12 years imprisonment;
(c)sexual assault in the third degree (CC2017/3022), a contravention of s 53(1) of the Crimes Act the maximum penalty for which is 12 years imprisonment;
(d)possession of an unregistered firearm (CC2017/3015), a contravention of
s 177(2)(a) of the Firearms Act1996 (ACT), the maximum penalty for which is six years imprisonment, a fine of 500 penalty units or both.
The final offence relates to a young man who I will refer to as KD. It is an offence of using a carriage service in a manner that was menacing, harassing or offensive. This is a contravention of s 474.17 of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of three years imprisonment.
Facts
TU – Sexual intercourse with a person under the age of 16 years
TU became friends with the offender in 2015 when she was 14 and he was 17. The age difference between the two was two years and seven and a half months. Between
31 July 2016 and 31 August 2016, TU and a friend of hers met the offender at the house of a male friend of the offender. The offender asked her whether she wanted to have sex with him and she agreed. She told him that she was 15 years and 10 months of age. The offender told her that she should not tell anyone they had sex until she was 16 years of age and that he would get into trouble if anyone found out. They had sexual intercourse on that day and the next. The charge to which he has pleaded guilty is therefore a rolled-up charge relating to these offences.
The offence is in the low to mid-range of objective seriousness because the intercourse was not without ostensible consent and the age difference between the two was not very far beyond the two years: cf s 55(3)(b) of the Crimes Act; R v Sulemanov [2007] VSCA 288 at [20]. There was no evidence of circumstances indicating the victims will was overborne. That is clearly the absence of an aggravating factor rather than being a mitigating factor: R v CV [2013] ACTCA 22; 233 A Crim R 67 at [23]-[25]. However, the offender was clearly aware of TU’s age and the unlawfulness of his conduct. In reaching this conclusion I have had regard to the material in the victim impact statements of TU and her mother described in further detail below.
TU – Assault occasioning actual bodily harm
TU stayed at the offender’s home from 6 December 2016 until 14 December 2016. During that period the offender played a “game” which involved throwing a kitchen knife at TU. On one occasion the offender threw the knife at her and it cut the side of her foot causing it to bleed. The offender assisted in applying first aid to the cut. When helping to dress her injury he said: “You don’t realise how sick in the head I am. I enjoy this. I enjoy doing this to people.” Also at some stage during that period, the offender punched her whilst he was wearing a pair of red and blue boxing gloves causing her to fall to the ground. He then kicked her in the thigh region causing a large bruise. She was crying by the time the offender had stopped striking her. Once again this involves a rolled-up charge of the two incidents of assault which involved actual bodily harm; the knife incident and the kick to the thigh. The assaults were consistent with the offender having behaved in a controlling and threatening manner during the course of the relationship, including showing her a replica firearm and brandishing knives in her direction with the consequence that she was scared of him.
As I have indicated above, this is a rolled-up charge involving the cut to the foot and the bruise to the thigh. It is in the mid-range of objective seriousness because of the nature of the wound, the dangerousness of the conduct leading to the cut and the additional injury caused to the thigh.
TU – Damage to property
Sometime between 6 and 14 December 2016 the offender destroyed TU’s Apple
iPhone 5 by smashing the screen and bending it until it broke apart. This is in the
mid-range of objective seriousness having regard to the value of the property damaged and the fact that it occurred as part of a pattern of controlling activity within an intimate relationship.
TU – Possessing child exploitation material
During the course of their relationship TU would perform oral sex on the offender. The offender recorded this on at least one occasion. At the time TU was 16 years of age. When police ultimately seized the offender’s phone on 9 March 2017, they found two still images and three video files of TU performing oral sex on a male person. The male person was the offender. The attitude of the offender is demonstrated by the fact that during the second video the offender is heard saying to TU as she performed oral sex upon him “Deeper you dick head”.
There was no evidence that TU did not consent to the taking of the photos and the making of the videos. For this reason and having regard to the age range of persons who may be subjects of the material the subject of this offence, I assess it as being in the low to mid-range of objective seriousness for this offence. The evidence as to what may be heard on the video does, however, indicate the attitude of the offender to the victim of the offence.
KI – Common assault
KI started a relationship with the offender in January 2017. The relationship involved sexual intercourse. From the beginning of the relationship, the offender threatened and intimidated her. In the middle of February the relationship ended and KI left the Australian Capital Territory (ACT), although following contact from the offender, she agreed to return to the ACT to see him and did so on 4 March 2017.
The common assault charge arises from events on 8 March 2017. She was staying at his house. That morning they had sexual intercourse on two occasions. There was an argument when KI wished to use the offender’s phone to reply to a message from her ex-boyfriend. The offender questioned her about whether she had slept with her
ex-boyfriend and she said that she had. The offender started to slap her around the side of her head and she covered her face so that she would not be hurt. The blows to her head caused pain on the back left-hand side of her head just above her ear.
The offender then demanded her Facebook password so that he could read her messages. She tried to open her Facebook account but was unable to do so. He then threw her belongings out of a sliding door onto a footpath. She went outside to pick up her things and the offender started yelling at her from the balcony area. He filmed her as she picked up her bags and told her that he was sending the video to his friends. She saw a woman coming out of an apartment from across the road and asked if she could use her mobile phone. The offender yelled at her not to talk to anyone. The offender eventually allowed her to re-enter the apartment. He did not speak to her for a short time and then asked her to get his clothes from the laundry. She could not find any clothes and returned to the hallway. She saw the offender standing with a firearm in his hand. It appeared to have a magazine inserted. He held up the firearm towards her and told her to suck the barrel as if she was giving it a “head job”. She got on her knees and told the offender that she did not want to. He told her to suck it and she told him that she would if she knew it was not loaded. He then showed her that there were no bullets in the firearm. She performed the act requested in relation to the firearm before taking it out of her mouth and telling the offender that she did not want to any more.
The common assault is the slapping of the head. The balance of the circumstances merely provide the context both of the assault and the sexual intercourse without consent which is next described. The common assault is in the low to mid-range of objective seriousness. It is not in the low-range because it occurred as part of a pattern of controlling behaviour in the context of an intimate relationship with the victim.
KI – Sexual intercourse without consent
Immediately after the events I have just described, the offender said “Suck my dick like you suck your ex’s”. She said she did not want to. He was still holding the firearm. He told her to “play with him and suck his dick”. She did what he wanted including performing oral sex on him. He said “Once I’m hard enough I’m going to fuck you”. She begged him not to and he made a motion of picking up the firearm. She continued to perform oral sex on him and then he had penile-vaginal intercourse with her which felt rough. He then withdrew his penis and thrust it into her anus causing her to yell out. He continued for a short time until she started to cry and he stopped shortly after.
This is a rolled-up charge involving both the vaginal and anal intercourse. It is in the
mid-range of objective seriousness for this offence. It is only at that level because the very seriously aggravating circumstances in which it occurred are the subject of the separate offence of sexual assault in the third degree, which I now refer to.
KI – Sexual assault in the third degree
Immediately prior to penetrating her anus, the offender told her that he was going to do so. She told him she did not want to and he said “if it’s not me it will be the gun”. KI took this to mean that if she did not allow him to have penile-anal sex with her, he would insert the firearm into her anus.
Throughout the incident KI felt that if she refused any of his demands he would physically hurt her. She felt that she was unable to leave the apartment once he had begun to brandishing the firearm.
This offence is in the mid to upper level of objective seriousness for this offence. The statement of facts and the submissions of the parties did not identify whether the offence was because of an assault by reason of an immediate apprehension of force or because of a threat to inflict actual bodily harm on the victim. The facts are more consistent with the latter. Although it did not involve any physical assault, it was still very serious because of the gravity of the threat made.
Consistent with the controlling and manipulative behaviour involved in the preceding events, after the anal intercourse, the offender told the victim that he loved her.
Following these events he left the premises with some friends. As soon as the offender left the apartment, KI collected her belongings and with the assistance and encouragement of a neighbour, went to the City Police Station and spoke to police.
The offender was arrested the next day. The statements that he made to police recorded in the statement of facts were consistent with an absence of proper appreciation of the gravity of his conduct.
Possession of an unregistered firearm
The firearm that had been used with TU and KI was in fact a replica 0.45 calibre US Army model M 1911 handgun. It was found to be an imitation firearm with no firing pin. Notwithstanding the realistic nature of the imitation firearm, this is in the low-range of objective seriousness for the offence because it involved possession rather than use (which is also covered by the provision) and because of the range of firearms covered by the provision.
KD – Use carriage service to menace, harass or offend
The offence in relation to KD occurred on 6 March 2017. This was during the period that KI was staying with the offender. At about 1:00pm on 6 March 2017, the offender borrowed KD’s car on the condition that he would return it by 3:30pm so that KD could get home from work. The offender did not return it.
At about 4:30pm KI called KD and told him a false story that the offender had been arrested for being an unlicensed driver in a stolen vehicle and that the vehicle had been impounded.
KD made enquiries of police stations in order to attempt to recover his vehicle. He then went to visit KI’s mother in Holt who had not seen the vehicle or the offender. He went to the offender’s house but nobody answered and he did not see the vehicle. He then went to the Gungahlin Police Station but was not willing to report the vehicle as stolen. There was then a text message conversation with the offender who demanded that he pay him $300 and apologised to KI’s mother for attending her house. There was no basis for the demand. The offence arises from the following portions of the text message conversation:
You can pick up your car
In the morning you piece of shit after you face me and apologise to [KI] and her mum you can have your car back
You ever make me look bad in her mother again and I’ll rip your fingernails off one by one
Oh and [KD] bring $300 if you want your car back for what I paid to get it out
That’s what it cost them to tow and the parking fee for the daySince you want to be such a pig also
I got your address and Helens I’ve sent it to 4 ppl now. If I hear you mention cops again I’m going to take it to a whole new level
…
Okay well I’m telling you now. You and I will go toe to toe and I’ll rip your head off for what you have done to my gf
And when I see your girl I’ll get my girls to fuck her up
…
Yeah but I’m not going to leave ou
…
I’ll see you around
Just to watch who you give a lift for next few weeks
I’ll make you drive to me I’ll make you walk in to your own trap
And when I do
I want your finger
The menacing nature of this text communication puts it in the mid-range of objective seriousness. The outrageous bullying and demands provide the context for the menaces made by the offender.
Victim impact statements
Victim impact statements of TU and her mother were read by the prosecutor and were tendered. I have taken them into account in assessing the objective seriousness of the offender’s conduct. Consistently with what one would expect as a result of the offending conduct of this nature, the victim has been in fear of contact with the offender’s friends or any of the young women that the offender hung around with. She remains fearful of him and his family. She describes the impact upon her school work and a sense of isolation because she had few people talk to about what had happened to her.
The victim impact statement of her mother describes the damage that TU’s relationship with the offender had on her relationship with her family. It describes the strain put upon her whole family arising from finding out what had happened and what she had been going through. The statement illustrates the wider consequences of offending conduct of this nature upon the family of the victim.
Subjective circumstances
The offender was born in Melbourne to Lebanese parents. He described a poor relationship with his father who was abusive towards him and his siblings. His father does not allow the offender to have contact with his stepmother. He has limited contact with his mother who left Australia when he was around eight years old and now lives overseas.
Prior to being held in custody on remand, the offender resided with one of his brothers. His intention upon being released from custody is to return from Melbourne. There is some prospect that he will have greater support and guidance from his siblings and extended family if he returns to Melbourne.
He completed Year 12 but did not gain a Year 12 certificate. He has completed one year of a carpentry apprenticeship, one year of a hairdressing apprenticeship, and work is available to him with his brother if he relocates to Melbourne. He has worked casually through labour hire companies.
He has been a bodybuilder and associated with like-minded individuals through whom he obtained steroids. He has consumed alcohol at risky or hazardous levels. He has used anabolic steroids and insulin for the purposes of bodybuilding. There is reference in the Pre-sentence Report to significant health issues being caused by his steroid and insulin use, but this was based upon the report of the offender and there is no medical information to corroborate it.
His attitude to the offending conduct is described in the Pre-sentence Report but in a manner which tended to minimise the significance of the conduct and the impact that it had on the victims. The Static 99 assessment resulted in the offender being assessed as at a high-risk of sexual re-offending. He was identified as being ready for treatment to address this risk. He is assessed as being at a medium to high-risk of general
re-offending. The authors of the Pre-sentence Report identified his criminogenic risks as being higher if he remained in Canberra because of his lack of accommodation, unemployment and involvement in an antisocial peer group.
Criminal history
[Redacted for legal reasons]. Although the circumstances surrounding these offences are not disclosed in the material before the Court, it is notable that in relation to each, Good Behaviour Orders were made which included the capacity for him to be directed to programs or counselling “particularly in relation to anger management and victim empathy”.
He has a further conviction for an assault occasioning actual bodily harm committed in May 2016. He was sentenced to three months imprisonment which was served between May and August 2017.
He has no prior convictions for sexual offending.
Time in custody
The offender has spent 11 months in custody following his arrest on 9 March 2017; three months of that period were not attributable solely to these charges because he was serving the sentence of imprisonment for assault occasioning actual bodily harm just described.
Consideration
The offences are serious ones. The sexual offences reveal a disturbing pattern of violence and coercion which reflect dangerous and unacceptable attitudes to women and sexual relations. The significant and long term harm that such offending conduct does to young people and the broader range of people who are affected by such conduct must be recognised as part of the sentencing process.
All three sets of offences demonstrate the offender’s predisposition to violent, threatening and controlling behaviours. It is very clear that these offences must be denounced and punished. General deterrence is a significant issue, but specific deterrence is even more important in this case having regard to what the evidence discloses about the attitudes of the offender. Having regard to his age, some emphasis must be placed on the prospect of rehabilitation, but that must be rehabilitation which occurs through courses and programs that are available in a custodial setting.
I have taken into account the offender’s personal circumstances. It appears that his lack of consistent and responsible family support during the course of his upbringing is a factor which has led him to hold the attitudes that he does today. However, contrary to the submissions made on his behalf, the circumstances are in no way comparable to those considered in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
I have also taken into account that the conviction on the charge of sexual intercourse with a person under the age of 16 will result in him being entered on the Sex Offender’s Register kept under the Crimes (Child Sex Offenders Act) 2005 (ACT).
I accept the submission made on behalf of the offender that his conduct may, at least in part, be attributable to his immaturity. However, it is only possible to give limited weight to the immaturity component when regard is had to the nature of the conduct in question and the attitude and beliefs, most particularly in relation to women, which that conduct indicates on the offender’s part.
I have taken into account the significance of the offender’s youth. Notwithstanding that he is an adult, the considerations set out in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36] are still significant.
The offender is entitled to a reduction in his sentence on account of his plea of guilty, which in the present case must involve a very significant utilitarian value. The sentences on each charge will be reduced by approximately 15 per cent from the sentence which would otherwise be imposed having regard to his plea of guilty. I take into account that it was not at the earliest possible stage but that it also occurred following negotiations which led to a reduction in the number of charges and an agreement on the statement of facts.
The position is therefore that the offences are very serious ones and there is little in the material to indicate that the prospects of rehabilitation are good. On the other hand, the offender is only just short of 20 years old and hence there must be some prospect or, at the very least some hope, that as a result of a period of imprisonment is deterred from further similar offending.
There is no doubt that a custodial penalty is the only appropriate penalty having regard to the options available and the gravity of the serious offences. The sentence must be served by way of full-time detention. Neither party made a submission to the contrary.
Because of his youth I will set a lower than usual non-parole period of approximating 50 per cent of the sentence for the Territory offences.
The sentences that I will impose will be as follows, which I will indicate in narrative terms before pronouncing the orders of the Court.
The offender will be convicted on all charges. The sentences of imprisonment will be cumulative except where I note to the contrary.
On the charge of using a carriage service in a manner that is menacing harassing or offensive, the offender will be sentenced to imprisonment for two months and two weeks, reduced from three months on account of the plea of guilty. No recognizance release order for a non-parole period need be set for this offence because it does not exceed six months: Crimes Act 1914 (Cth), s 19AC(3).
On the charge of sexual intercourse with a person under the age of 16 years, the offender will be sentenced to 10 months imprisonment, reduced from 12 months on account of the plea of guilty.
On the charge of assault occasioning actual bodily harm, the offender will be sentenced to five months imprisonment, reduced from six months on account of the plea of guilty.
On the charge of possessing child exploitation material, the offender will be sentenced to three months and two weeks imprisonment, reduced from four months on account of plea of guilty.
On the charge of damaging property, the offender will be sentenced to one month and three weeks imprisonment, reduced from two months on account of the plea of guilty.
On the charge of common assault, the offender will be sentenced to one month and three weeks imprisonment, reduced from two months on account of plea of guilty.
On the charge of sexual intercourse without consent, the offender will be sentenced to 31 months imprisonment, reduced from 36 months on account of the plea of guilty.
On the charge of sexual assault in the third degree, the offender will be sentenced to imprisonment for 20 months, reduced from 24 months on account of the plea of guilty. Having regard to the closely related circumstances of this and the previous offence, they will be concurrent except as to five months. This gives an aggregate period in relation to these two offences of three years imprisonment.
In relation to the possession of an unlicensed firearm, the offender will be sentenced to imprisonment for two months and two weeks, reduced from three months on account of the plea of guilty.
The total effective period of imprisonment resulting from the sentences is five years, two months and 25 days. The Territory offences in aggregate account for 60 months and two weeks. Because of the offender’s youth, I will impose a shorter non-parole period for the Territory offences than usual of 30 months. To that must be added the two months and two weeks for the federal sentence which will be served first.
The period of imprisonment will be backdated for a period of eight months to take account of his pre-trial custody. Although he has been in custody for 11 months, three of those months, as stated above at [40], are not solely attributable to the present offences.
Orders
The orders of the Court are:
1.The offender is convicted on each offence.
2.On the charge of using a carriage service in a manner that was menacing, harassing or offensive (XO2017/31232), the offender is sentenced to imprisonment for two months and 2 weeks commencing on 9 June 2017 and ending on
22 August 2017.3.On the charge of sexual intercourse with a person under the age of 16 (CC2017/4589), the offender is sentenced to imprisonment for 10 months from
23 August 2017 and ending on 22 June 2018.4.On the charge of assault occasioning actual bodily harm (XO2017/31186), the offender is sentenced to imprisonment for five months from 23 June 2018 and ending on 22 November 2018.
5.On the charge of possessing child exploitation material (CC2017/4596), the offender is sentenced to imprisonment for three months and two weeks commencing on 23 November 2018 and ending on 8 March 2019.
6.On the charge of damage property (CC2017/4595), the offender is sentenced to imprisonment for one month and three weeks commencing on 9 March 2019 and ending on 29 April 2019.
7.On the charge of common assault (CC2017/3019), the offender is sentenced to imprisonment for one month and three weeks commencing on 30 April 2019 and ending on 19 June 2019.
8.On the charge of sexual intercourse without consent (CC2017/3021), the offender is sentenced to imprisonment for 31 months commencing on 20 June 2019 and ending on 19 January 2022.
9.On the charge of sexual assault in the third degree (CC2017/3022), the offender is sentenced to 20 months imprisonment commencing on 20 October 2020 and ending on 19 June 2022.
10.On the charge of possess unregistered firearm (CC2017/3015), the offender is sentenced to two months and two weeks imprisonment commencing on
20 June 2022 and ending on 2 September 2022.11.The non-parole period in relation to the Territory offences commences on
23 August 2017 and ends on 22 February 2020.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 16 April 2018 |
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