R v Hasna - [2020] NSWDC 947

District Court

New South Wales

Medium Neutral Citation: R v Hasna [2020] NSWDC 947
Hearing dates: Wednesday 1 July 2020
Date of orders: Tuesday 7 July 2020
Decision date: 07 July 2020
Jurisdiction: Civil
Before: Tupman DCJ
Decision:
The offender is convicted on both offences.
The offender is sentenced to a non-parole period of 2 years and 3 months with parole thereafter of 2 years, giving rise to an overall term of imprisonment of 4 years and 3 months.
Form 1 offence taken into account when sentencing for count 1.

Catchwords:
CRIME — Child sex offences — Indecent assault — Circumstances of aggravation — Two substantive counts and one Form 1 offence — One count below midrange of objective serious — One count at middle of the range of objective seriousness — Sole victim was 12-year-old male — Offender was almost 50 years old — Offending behaviour occurred in a men’s toilet cubical in the public toilets at a shopping plaza — Offender was cruising for a sexual encounter and followed victim into toilet block — Victim not physically injured but suffers an emotional impact — Victim Impact Statement taken into account — Offender comes from traditional family and has opened and operated a number of restaurants and food retailers — Offender has experienced prior physical health issues and existing mental health issues — Offender has no prior criminal convictions — Offender has very good prospects of rehabilitation.

Legislation Cited:
The Crimes Act 1900 (NSW): s 61M(2)
The Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 25AA

Category: Sentence
Parties: Regina (The Queen)
Hasna (The Offender)
Representation:
Counsel:
Mr. D. Dalton SC for the Crown
Mr. G. Harrison for the Offender
Solicitors:
Ms. C. Robinson for the Crown
Mr. J. Nguyen for the Offender

File Number(s): 2017/00121321
Publication restriction: Section s 578A of the Crimes Act 1900 (NSW) applies in this matter.

Judgment

HER HONOUR: This is a sentence judgment in the matter of Fouad Hasna. The offender is before the Court for sentence following his pleas of guilty on indictment dated 2 October 2019, to two counts of aggravated indecent assault. They are specifically the following:

Count 1: That on 22 April 2017 at Bass Hill, the offender indecently assaulted the known victim who was then under the age of 16, namely 12.
Count 2: A further charge in identical terms of aggravated indecent assault on the same complainant on 22 April 2017.

These offences are both contrary to s 61M(2) of the Crimes Act 1900 (NSW) then in force which carries a maximum penalty of 10 years imprisonment. There is a standard non-parole period of 8 years.
The offender asks that when sentencing him for count 1, I take into account an additional offence to be found on the schedule to a Form 1 signed by him and on behalf of the DPP and exhibited in these proceedings. It is a further offence contrary to s 61M(2), that is, an offence of aggravated indecent assault involving the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hasna

Details

AGLC: R v Hasna [2020] NSWDC 947
Case: [2020] NSWDC 947
Decision Date: 07 July 2020

CaseChat Overview and Summary

The defendant, in this case, was charged with two counts of indecent assault against a 12-year-old male and one Form 1 offence. The court had to decide on the appropriate sentencing for the defendant, who had no prior criminal convictions, but had been involved in inappropriate behaviour towards a child. The case was heard in the higher court where the sentencing decisions were made.

The court was required to consider several factors, including the nature and circumstances of the offences, the age and background of the offender, and the impact of the offences on the victim. The court also had to weigh the likelihood of rehabilitation against the need for punishment and deterrence. The court acknowledged the emotional impact on the victim, who, though not physically injured, had suffered significant psychological harm.

In delivering the judgment, the court considered the objective seriousness of the offences, which were found to be below the midrange and at the middle of the range respectively. The court also took into account the offender's background, including their family history, business ventures, and health issues. The court found the offender to have good prospects for rehabilitation. The court sentenced the offender to a non-parole period of 2 years and 3 months, with parole thereafter of 2 years, resulting in an overall term of imprisonment of 4 years and 3 months. The Form 1 offence was also taken into account when sentencing for count 1.

The court's final orders were that the offender be convicted on both offences and sentenced as outlined above.

Orders

Orders of the court

The offender is convicted on both offences.

The offender is sentenced to a non-parole period of 2 years and 3 months with parole thereafter of 2 years, giving rise to an overall term of imprisonment of 4 years and 3 months.

Form 1 offence taken into account when sentencing for count 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Hasna [2020] NSWDC 947
Hearing dates:	Wednesday 1 July 2020
Date of orders:	Tuesday 7 July 2020
Decision date:	07 July 2020
Jurisdiction:	Civil
Before:	Tupman DCJ
Decision:	The offender is convicted on both offences. The offender is sentenced to a non-parole period of 2 years and 3 months with parole thereafter of 2 years, giving rise to an overall term of imprisonment of 4 years and 3 months. Form 1 offence taken into account when sentencing for count 1.
Catchwords:	CRIME — Child sex offences — Indecent assault — Circumstances of aggravation — Two substantive counts and one Form 1 offence — One count below midrange of objective serious — One count at middle of the range of objective seriousness — Sole victim was 12-year-old male — Offender was almost 50 years old — Offending behaviour occurred in a men’s toilet cubical in the public toilets at a shopping plaza — Offender was cruising for a sexual encounter and followed victim into toilet block — Victim not physically injured but suffers an emotional impact — Victim Impact Statement taken into account — Offender comes from traditional family and has opened and operated a number of restaurants and food retailers — Offender has experienced prior physical health issues and existing mental health issues — Offender has no prior criminal convictions — Offender has very good prospects of rehabilitation.
Legislation Cited:	The Crimes Act 1900 (NSW): s 61M(2) The Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 25AA
Category:	Sentence
Parties:	Regina (The Queen) Hasna (The Offender)
Representation:	Counsel: Mr. D. Dalton SC for the Crown Mr. G. Harrison for the Offender Solicitors: Ms. C. Robinson for the Crown Mr. J. Nguyen for the Offender
File Number(s):	2017/00121321
Publication restriction:	Section s 578A of the Crimes Act 1900 (NSW) applies in this matter.