R v Hassan Nagi

[2010] NSWDC 129

CITATION:	R v Hassan NAGI [2010] NSWDC 129 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12/2/09 28/4/09 27/5/09 3/6/09 10/6/09 20/8/09 2/12/09 22/1/10 26/2/10 26/3/10 20/5/10 23/6/10
JUDGMENT DATE:	23 June 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	From [151]
CATCHWORDS:	CRIMINAL LAW – sentence following plea – sexual intercourse without consent (two counts in respect of each of 3 victims) – sexual assault by taxi driver – position of trust – vulnerable victims – assessment of objective seriousness of s 61I offence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Ali v R [2010] NSWCCA 35 R v AJP (2004) 150 A Crim R 575 R v Borkowski [2009] NSWCCA 102 R v Previtera (1997) 94 A Crim R 76 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168
PARTIES:	The Crown Hassan NAGI
FILE NUMBER(S):	2008/13633
COUNSEL:	Trevor Bailey Clive Steirn SC
SOLICITORS:	DPP Va Lawyers

IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION

2008/13633

BENNETT SC DCJ

Wednesday 23 June 2010

R v Hassan NAGI

SENTENCE

Introduction

1 HIS HONOUR: Hassan Nagi, the offender, appears for sentence upon the following charges for offences contrary to s 61I of the Crimes Act 1900.

Count 1: On 18 July 2003 at Sydney in the State of New South Wales did have sexual intercourse with V1 by inserting his penis into her anus without her consent, knowing that she was not consenting thereto.

Count 2: On 18 July 2003 at Sydney in the State of New South Wales did have sexual intercourse with V1 by inserting his penis into her vagina without her consent, knowing that she was not consenting thereto.

Count 3: On 16 December 2006 at Sydney in the State of New South Wales did have sexual intercourse with V2 by inserting his finger into her anus without her consent, knowing that she was not consenting thereto.

Count 4: On 16 December 2006 at Sydney in the State of New South Wales did have sexual intercourse with V2 by inserting his penis into her vagina without her consent, knowing that she was not consenting thereto.

Count 5: On 1 June 2007 at Kogarah in the State of New South Wales did have sexual intercourse with V3 by inserting his penis into her mouth without her consent, knowing that she was not consenting thereto.

Count 6: On 1 June 2007 at Kogarah in the State of New South Wales did have sexual intercourse with V3 by inserting his penis into her vagina without her consent, knowing that she was not consenting thereto.

2 The offences were committed on three separate women between 18 July 2003 and 1 June 2007, when they were utilising the offender’s services as a taxi driver.

Time spent in custody

3 The offender has been in custody since his bail was revoked on 27 May 2009. Before then he was at liberty save for the period of eight days commencing on 17 January 2008 and concluding on 24 January 2008 when he was first released to bail. His sentences must take account of that period of custody and therefore the first of the sentences shall commence upon a day to bring to account first the eight days that he has spent in custody, and in addition the time that he has been in custody since 27 May 2009.

The history of the proceedings

4 The offender was presented for trial on 9 February 2009 upon an indictment containing ten counts charging him with offences contrary to s 61I, s 61L and s 61N(2) of the Crimes Act. He was arraigned and to each of these charges the accused pleaded not guilty.

5 Before a jury was empanelled, the offender asked that there be separate trials for the offences alleged by the different complainants and opposed the Crown’s application to adduce as coincidence evidence the facts and circumstances of the offences alleged in each case.

6 Non-publication orders were made at the outset of the proceedings in respect of the names of the complainants and the offender, later extended to the evidence and submissions made and to be made upon the applications for separate trials and coincidence evidence, to be revisited once I had reached my decision.

7 It was said on behalf of the offender that consent was to be the sole issue in the trial. In the case of the allegations by V1 it was pointed out that the offender was not the holder of a taxi licence at the time, and taken with her level of intoxication, it was likely that she was mistaken as to the offender being the taxi driver concerned.

8 Evidence was led on the voir dire and on 11 February 2009 I announced my decision granting the Crown’s application and refusing the application for separate trials. I subsequently published my reasons.

9 I lifted the non-publication orders made in respect of the name of the accused and the evidence, but those made in respect of the names of the complainants and information that might enable their identification remain in keeping with s 578A of the Crimes Act, which proscribes such publication in respect of prescribed sexual offences as defined in the Criminal Procedure Act 1986. The offences that were charged are prescribed sexual assault offences, as are those upon which the offender is now to be sentenced.

10 After I announced my decision the parties sought further time to refine the issues and to negotiate agreement upon the facts that would not be contested in the trial. The matter was adjourned until later that afternoon, but then further time was sought to continue negotiations. The trial was adjourned to commence at 10 am on 12 February 2009. I was then informed that the accused had instructed his counsel that he would plead guilty to offences presented in a fresh indictment, but further time was sought to allow the preparation of that document and preparation of an agreed statement of facts upon which the accused would be sentenced. Later that day the accused was presented upon a fresh indictment charging the aforementioned six offences contrary to s 61I of the Crimes Act. He pleaded guilty to all charges and was convicted each case. The Crown tendered an agreed statement of facts marked Exhibit A on sentence. The hearing was adjourned to resume on 28 April 2009.

11 On that day the matter could not proceed to finality. Counsel sought in camera proceedings to advise that the offender was recently diagnosed with Human Immunodeficiency Virus, discovered after the psychiatrist retained to assess the offender and to provide a report for the sentence proceedings advised him to undergo testing in light of his disclosure of multiple sexual partners, including his resort to prostitutes. The psychiatrist was informed of the infection on 13 March 2009 and took immediate steps to have the offender’s wife and children examined. The offender instructed his representatives to inform the Director of Public Prosecutions of the discovery so that the complainants might be informed and have their own assessments performed. There is no suggestion that the offender was aware of the infection before the tests required by the psychiatrist, but another medical practitioner offered the opinion that the stage reached by the disease indicated infection some years back. There is no evidence that the offender’s wife or his children or the complainants in these offences have been infected. There is further material relevant to this to which I shall turn further on into these remarks.

12 Both parties presented the material relevant to the offender’s infection in such a manner that its confidentiality was maintained, notwithstanding that the hearing was at the time in open court filled with members of the media and others interested in the proceedings.

13 Further evidence was adduced relevant to the assessment of sentence. Two victims read their victim impact statements to the Court and the third had hers read on her behalf. This material was received, the offender having been formally convicted of the offences to which he pleaded guilty on 12 February 2009. The statements included reference to the victims’ knowledge of the offender’s infection, but those parts of the documents were not disclosed in open court. The impact of the offences upon the victims is discussed later in these remarks.

14 The proceedings were adjourned to resume on 27 May 2009 to allow the offender to continue with initial treatment, which I accepted was necessary to limit his exposure to greater risk. On that day his sister-in-law gave evidence on his behalf and a number of documents were tendered in his case. Thereafter his counsel made submissions upon the assessment of penalty which continued in camera when the offender’s counsel pressed for the non-publication of the evidence of the infection, including that there be no reference to it in my remarks on sentence, notwithstanding that the offender wanted to rely upon the condition in support of the argument that his time in custody would be more arduous than otherwise would be the case, thereby attracting a reduction in the sentence to be imposed had he been without this burden. I heard limited argument on this point and adjourned the proceedings part heard to 3 June 2009. The parties sought the opportunity to provide further submissions upon the non-publication of the offender’s condition. I made interim orders against the publication of the information.

15 In the intervening period I came to the view that the information should not be withheld from the public and on 3 June 2009 I set aside the order proscribing its publication. The offender sought an extension of my order against publication to allow my decision to be tested in the Court of Criminal Appeal. The judgment of that Court was delivered on 4 August 2009. The offender was unsuccessful, however the orders of that Court were stayed to allow the offender to pursue special leave to appeal in the High Court of Australia. Thereafter the matter was listed for mention before from time to time to monitor progress in the application for special leave, which was ultimately refused on 2 June 2010.

16 I may therefore confirm my order setting aside the earlier order I made proscribing publication of the fact that the offender has been diagnosed with Human Immunodeficiency Virus.

17 The proceedings were finally listed for the imposition of sentence today, 23 June 2010.

The impact of delay

18 The offender was, of course, entitled to test my decision to allow publication of his infection from Human Immunodeficiency Virus in the Court of Criminal Appeal and thereafter to pursue special leave in the High Court of Australia. The resultant delay, however, should not serve to extend leniency to him because he chose this course of action. There could not be any doubt about the outcome in these proceedings. It must have been clear to him that custodial sentences were to be imposed.

19 Nor should there be any leniency extended to him because of the passage of time since the first of these offences and his arrest and prosecution. The first offence was on 18 July 2003 and those subsequent were on 16 December 2006 and 1 June 2007. In each case the offences were reported to the police shortly after they occurred. The offender’s disregard for his victims in the unprotected sexual intercourse upon which he engaged without their consent ultimately led to the identification of DNA with a profile matching his. He was arrested on 16 January 2008, but denied his crimes until he finally accepted responsibility with his pleas of guilty.

20 In my judgment it could not be said that even the earliest of these offences is stale or so remote in time that the offender should have reduced the sentence he should face for that offence. Moreover it cannot be said that after 2003 the offender took steps towards rehabilitation from his misconduct. Instead he committed further offences until he was identified and charged and thereafter continued to deny his crimes until his pleas of guilty two days after his trial was to commence. His pleas followed my decisions upon his separate trial application and the application by the Crown to call coincidence evidence, in the agitation of which he persisted with the proposition that the victims of his crimes had consented to his depravations.

Maximum penalties and standard non-parole period

21 The maximum penalty for offences contrary to this provision was at all material times imprisonment for fourteen years. A standard non-parole period is specified for this offence for the purposes of Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period specified is seven years.

The significance of the standard non-parole period

22 Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act provides standard non-parole periods in respect of offences listed in the table therein. Item 7 in the table relates to this offence for which, as I have said, the standard non-parole period is seven years.

23 In his second reading speech reported in Hansard on 23 October 2002, the Attorney General addressed the legislation introducing the provisions for standard non-parole periods. His speech is quoted in R v Way (2004) 60 NSWLR 168 at [49]. It made clear that the standard non-parole period specified for an offence would represent the non-parole period appropriate for conduct within the middle of the range of objective seriousness for such an offence and that the standard non-parole period would provide a reference point or benchmark within the sentencing spectrum for conduct that falls above or below the middle of the range of objective seriousness for such an offence.

24 The Act provides that standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences included in the table: s 54A(2). The Court is to set the standard non-parole period fixed for the offence unless the Court determines that there are reasons for setting a non-parole period that is either longer or shorter than the standard non-parole period: s 54B. The reasons for which a court may set a non-parole period that is longer or shorter are restricted to those matters set out in s 21A of the Act: s 54B(3).

25 All of the matters set out in s 21A of the Act are matters that are, generally speaking, taken into account as aggravating or mitigating factors with the exception that where a factor listed under s 21A as an aggravating factor is, in fact, an essential element of the offence, then it cannot be said to act in such a case as an aggravating factor; s 21A(2).

26 The Court of Criminal Appeal has made clear that standard non-parole periods strictly apply only to offences within the middle range of objective seriousness and upon conviction after trial, but nevertheless provide another guidepost for sentencing courts when a trial is avoided by a plea of guilty, the offence is not assessed as falling with the middle range of objective seriousness or, by reason of the matters set out in s 21A of the Crimes (Sentencing Procedure) Act, a judge determines that the standard non-parole period should be reduced or increased. The other guidepost is the maximum penalty provided for the offence: R v Way ibid.

27 The Court assesses these guideposts in light of the assessed criminality of the offence and the offender, the favourable subjective features of the offender and any other discount entitlements for such things as a plea of guilty. One must ask whether reasons exist for not imposing the standard non-parole period. That question is answered by considering the objective seriousness of the offence in order to determine whether it falls within the mid-range of objective seriousness for offences of the relevant kind. This assessment includes consideration of the applicable circumstances of aggravation and mitigation provided in s 21A(2) and s 21A(3) and having regard to the general provisions of s 21A(1)(c) and the concluding sentence in s 21A(1) of the Crimes (Sentencing Procedure) Act: R v Way at [103].

28 The applicable circumstances of aggravation and mitigation are those that are directly or causally related to the commission of the offence. These may include matters that are itemised in s 21A(3) as mitigating factors. These principles also found a voice in the judgment of Simpson J in R v AJP (2004) 150 A Crim R 575, drawing from R v Way seven propositions, the fourth of which she expressed thus, citing [85] and [86],

“(iv) Circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness.”

29 Thus, assessment of the objective seriousness of the offence requires consideration of the conduct of the offender in his commission of the offence and the circumstances in which it was committed, and consideration of the circumstances of aggravation and mitigation in s 21A(2) and s 21A(3) of the Act that are relevant to those matters in the sense that they are directly or causally related to the offending conduct.

30 If it is determined that the offence falls within the middle range of objective seriousness then the standard non-parole applies but is subject to appropriate discount pursuant to s 22 of the Act where a plea of guilty was entered by a percentage assessed against the utility of the plea provided: R v Thompson; R v Houlton (2000) 49 NSWLR 383, and R v Borkowski [2009] NSWCCA 102.

31 If it is determined that the offence does not fall within the middle range of objective seriousness the standard non-parole period is not imposed. The Court is then required to exercise its discretion in accordance with established sentencing practices and by reference to matters identified in ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act. In such an approach the standard non-parole period is properly a reference point or guidepost along with other relevant extrinsic aids, such as authority, statistics, guideline judgments and the specified maximum penalty.

32 The sentences I am about to impose for these offences reflect my assessment that the criminality of this offender in each case, or more accurately in each instance of offending with regard to the particular complainant, falls above the middle range of objective seriousness of conduct contrary to s 61I of the Crimes Act, and my assessment of the subjective factors such as are available to him.

Timing of the plea

33 According to my note made on 12 February 2009 the Crown was attributed with a concession that a discount of fifteen per cent was appropriate. In his submissions, counsel for the offender urged a discount of twenty per cent upon the premise that the offender had saved the complainants the burden of giving evidence in the trial, and that by reason of the nature of sexual assault trials generally and this trial in particular, the utility of the pleas of guilty should be assessed to be of significance.

34 In my judgment such discounts are more generous than the offender deserves.

35 The offender did not plead guilty until after the determination of the applications for the charges to be tried separately and for the Crown to be permitted to adduce coincidence evidence.

36 The defence case was at that time represented to be that the sexual activity upon which the charges were brought was entirely consensual and in the case of the complainant, V1, that the offender would in addition rely upon the fact that he was not at the time licensed to operate a taxi and that if she were the victim of a sexual assault at the hands of the tax driver, it was someone else and occurred after their consensual encounter in a hotel. The Crown was thus required to have the complainants available to give evidence in a trial on 9 February 2009 and thereafter until 12 February 2009 when the offender indicated that he would plead guilty, which he did on that day.

37 It is a reasonable inference that had my decisions upon the applications for separate trials and the admission of coincidence evidence gone against the Crown, the offender would have persisted in his defence premised upon the lies informing the submissions of his counsel at that point.

38 In these circumstances the offender shall be allowed a discount of ten per cent to the sentences that might otherwise be imposed for the limited utility his pleas provided: R v Borkowski ibid.

Facts

39 The following summary is drawn from a statement of facts tendered by the Crown, Exhibit A, which is structured by commencing with the last of the offences as a result of which the offender was identified and thereafter connected to the earlier offences though his DNA profile. I shall take a different approach by commencing with the first of the offences and follow the path to the point where the offender was finally brought to account.

Counts 1 and 2

40 On the evening of 17 July 2003 V1, the victim in counts 1 and 2, was out with friends in the King Cross area. She first went to a friend’s home to discuss a future project with colleagues from the course she was undertaking. Whilst there, from about 8.30 pm, she and her friends drank wine. About 12.30 am, by then 18 July 2003, the victim and one of her colleagues went to a local nightclub where they continued to drink. The victim became very intoxicated. About 3 am she telephoned her boyfriend. She told him she was sitting in the gutter intending to catch a taxi home. Her next memory is of being in a taxi behind the driver. Because of her intoxication she could not recall the route that the taxi was taking. Although she recalls speaking to the driver, she cannot remember what was discussed. She is said to have passed in and out of consciousness.

41 Her next memory is of the driver opening the rear door and entering the rear of the vehicle. She briefly thought that they had arrived at her home and that he was assisting her from the taxi. Instead, however, he unzipped his fly and said, “You want this. I know you want it”. She replied, “Want what” to which the offender said, “You want this”. The offender forced himself upon the victim. She struggled to resist him but was unable to do so because of her intoxication. He pulled her pants and underwear down around her knees and penetrated her vagina and her anus with his penis. She recalls him forcing her legs upward and thrusting as her legs were over his shoulders. She felt immediate pain when he penetrated her anus and said, “Stop it. Stop it, I don’t do that”. She thought he was about to ejaculate and he then stopped thrusting.

42 She has little memory of what occurred after this. She next recalled speaking on her mobile phone with her boyfriend telling him of what occurred and that she thought she was bleeding from the assault. There was no evidence before me that that was in fact the case.

43 Shortly after an ambulance arrived and took the victim to Royal Prince Alfred Hospital where she was forensically examined and had treatment administered. Semen was detected on the high vaginal and perianal swabs taken, from which DNA matching the profile of the offender was subsequently identified.

44 These offences were committed without the protection of a condom. They involved penile vaginal and penile anal penetration.

Counts 3 and 4

45 About 6.30 pm on 15 December 2006 V2, the victim in counts 3 and 4, was with friends at a bar in Sussex Street, Sydney. She consumed four drinks there and with one of her friends caught a taxi to King Cross where they became involved in an unrelated incident that they reported to the Kings Cross police. They left the police station about 12.30 am on 16 December 2006 and went to a nightclub with their friends with whom they were drinking earlier. The victim continued to drink and also danced until she felt ill and went outside with one of her companions. There she vomited.

46 Her memory in part fails her at this point but she remembers next being in the front seat of a taxi driven by the offender. He said to her, “You’ve had a baby”. She said “Yeah”. The offender said, “It doesn’t look like it, you’re so hot”. The offender placed his hand between the victim’s legs beneath her skirt. He stopped the taxi in a dark area where the victim alighted. The offender followed her, took her by the left arm, and led her to a large crate nearby where he held her by the wrists as he kissed her and placed his hand beneath her skirt. Disregarding her protestations the offender said, “Come on baby, you’re making me so horny”. When she said she had to go to her friend he said, “I’ll take you back there soon, this won’t take long”. He repeated the phrase “You’re making me so hot”. He took her by the waist, pulled her underpants down and lifted her skirt, bent her forward and penetrated her anus, possibly with his finger. She moved away as she protested. She attempted to pull her pants up but he laughed, pulled them down again, and penetrated her anus once more. She protested and pulled away, whereupon he picked her up and carried her to the crate where he repeated several times “Come on baby” as he rubbed her vagina. He said, “You’re so wet, you’re making me horny”. He then inserted his penis into her vagina. Thereafter he offered her money, first $20, and then $50, which she refused.

47 She was then returned to the nightclub where she had been with her friends. She reported the event to them and thereafter reported the incident to the police, after which at the Nepean Hospital she underwent a forensic examination from which DNA material was gathered, later found to match the offender.

48 These offences involved digital penetration of the victim’s anus and penile vaginal penetration without the protection of a condom.

Counts 5 and 6

49 To provide for herself and her children the victim in these offences was, at the time, working as a masseuse with occasional and limited sexual services. These facts are not included in the summary of facts but were before me as part of the evidence led upon the applications for separate trials and the admission of coincidence evidence. It is axiomatic that the victim’s work does not disentitle her to the protection of the law from the crimes committed by this offender.

50 Shortly after 5 pm on Friday 1 June 2007 the victim arrived at Jubilee Oval with her sister and their children to watch a game of rugby league. She received a call on her mobile phone at some time between 6.30 pm and 7 pm and spoke to a man who identified himself as Mohammed. She knew someone of that name through her work. They spoke of meeting at Kogarah. Later at 8.23 pm, according to the call record on her phone, she received a further call from this man who said he was outside the front of the football ground parked in a taxi behind some buses. The victim walked out of the stadium and saw a taxi pull put from behind buses and flash its headlights. It stopped near her. She opened the front passenger door and asked whether the driver was Mohammed. The offender was driving and at the time was speaking on his phone. She entered the taxi and asked who he was. He said that he was Mohammed, which she refuted, whereupon the offender said that he was Mohammed’s friend. She said, “Pull over man, I don’t know who you are”. The offender said that he would, but instead kept driving as he continued to speak on the phone. She heard him say, “She’s fucking beautiful man”. The offender reached over and placed his hand on her crotch. She challenged him and he repeated into the phone “She’s fucking beautiful man”. He asked her for a “blow job” which the victim refused. She saw that they were in an industrial area with limited lighting surrounded by sheds.

51 The offender stopped the taxi and switched the engine off. The victim opened the door and alighted and as she walked off the offender asked where she was going. She moved further away, feeling intimidated, but asked the offender to return her to the stadium. He told her to wait as his friend was coming. She went to a nearby truck to see if there was anybody in the cabin. She told the offender that she wanted to return to the football but he asked her to join him and sit on some grass nearby. She did so, still feeling intimidated and fearful. She looked to her left in an attempt to identify her location and turned back to see the offender’s penis exposed in his right hand. He took her by the back of her head and pulled her down saying at the same time, “Here, suck my dick”. She pulled back and told him to wake up to himself but he pulled her head down and forced his penis into her mouth. After thrusting three times he released her head. She pulled away, stood, and began to walk away. The offender followed, pushed her to the ground onto her hands and knees and said, “Get down there and turn around”. She turned to see him lick his hand and then insert it into her shorts from behind and over her vagina. He then inserted his penis into her vagina from behind regardless of her repeating the words, “No, stop”. The offender withdrew and turned the victim over so that she was laying on her back. He inserted his penis into her vagina via the leg of her shorts. She told him to stop and said he was hurting her. He withdrew and then began speaking on his phone.

52 The victim stood and walked away before returning to demand that he take her to the football stadium. They re-entered the taxi and she heard him say “She didn’t make me blow”. She commented, “You weren’t supposed to. You weren’t supposed to fucking touch me”. When the taxi stopped at a red traffic light the victim jumped out and attempted to flag down other taxis without success. She finally located her sister and their children who were in another taxi.

53 She reported the incident to Macquarie Fields Police Station and subsequently underwent a forensic procedure.

54 These offences were for the fellatio and penile vaginal penetration, again without the protection of a condom.

The investigation

55 The police interrogated the call log on the victim’s telephone and identified the number that had called her phone before she went to where she was picked up by the offender in the taxi. About 3.15 pm on the day of his arrest police saw the offender driving a taxi in Rockdale. They approached and arrested him in respect of the offences charged in counts 5 and 6. He later took part in an interview in which he confirmed his telephone number. This was the number captured on the third victim’s phone.

56 He declined to respond to questions regarding the allegations and would not consent to a buccal swab. A hair sampling order was made by a senior police officer. The police also sought to ask the offender questions regarding the events represented in the other four counts but he declined. He declined the opportunity to participate in an identification parade.

57 The profiles from the DNA harvested from each of the victims and the offender’s hair sample were found to match.

The Victims

58 V1’s victim impact statement is Exhibit C. She describes the emotional impact of the sexual assaults upon her, including self-blame because of the risk to which she exposed herself for being unable to fight off her attacker, and her loss of self worth and the loss of her sense of safety. Her relationship at the time has disintegrated as a result of the emotional distress that developed after the crimes upon her and the changes they brought to her personality. She became introverted as her memories of the event continued to haunt her. She spoke of the benefits gained from her counsellor, retained to help her with her symptoms. Her list of effects included that she felt that she had no one to hear her and understand her fears; she felt that others would blame her because she had exposed herself to risk from her intoxication; she was anxious; she suffered sleep disturbance; she felt that she was not entitled to her relationship with her then boyfriend; she was unable to erase the event from her memory; she had the desire to drink to quieten inner voices; she felt dirty and ugly and unable to engage in a sexual relationship; she felt lonely and experienced lethargy and loss of interest in life; she continued to experience self doubt and fear.

59 She left her employment and, as a healing process, travelled to Thailand and Congo in Africa where she worked as a volunteer. This was beneficial, but the gains she made suffered when the offender was arrested and she was faced with re-living the events through preparation for court. Her anxiety and other symptoms returned. These were apparently exacerbated by press reports regarding the case brought to her attention when she returned to Australia.

60 She also wrote of the stress faced when she was advised that the offender was found with Human Immunodeficiency Virus and her fear and anger thereafter from that information.

61 V2 provided a less extensive victim impact statement, and although more succinct than the other two, it too reveals emotional sequelae suffered from the sexual assaults upon her. One of the consequences was the breakdown of her relationship with her then partner with whom she has a child. It is said that his feelings for her could not continue after this event.

62 She describes being unable to sleep alone in her house at night; she needs medication to help her sleep; she suffers anxiety when she sees men of comparable size and description to the offender; stress and anxiety have impaired her once social and outgoing personality and she is now withdrawn and no longer copes with crowds or large social gatherings; she has suffered weight loss of up to fifteen kilograms; she also wrote of her fears from the advice of the offender’s infection.

63 V3 wrote of the emotional burden she suffered after the offences upon her. She described the loss of desire to maintain contact with her family and friends, feelings of loneliness, sadness, anger and suicidal ideation. Her partner has left her and her children, one of whom is his son. The event persists in her memory including in the form of flashbacks to the location where it occurred. She speaks of her sense of insecurity and the development of a feeling that she is without power. She wrote of the impact of the advice that the offender was infected with Human Immunodeficiency Virus exacerbating the emotional symptoms that affected her from the date of the sexual assault upon her.

64 Exhibit F comprises two documents written respectively by V3’s mother and father. They disclose that after this event she was admitted to a mental health facility at Campbelltown for about two months after speaking of harming herself and her children. They both write of the change to her personality wrought by the sexual assault upon her; where she was once a happy person, close to her family and her children, she is now afflicted with mood swings, threatens self harm, and is growing distant from her family and children and friends.

65 I do not have any reports from health care professionals offering their opinions upon what the victims have offered in their statements. I am therefore not in a position to find that the emotional consequences of these offences are substantial. I shall refer to this once again when I come to deal with the aggravating factors relevant to these matters. On the other hand these women have given the Court some insight into the magnitude of the consequences of the offences upon them.

66 I make clear, however, that these considerations are not taken into account in aggravation of the offender’s culpability, but are noted, as is appropriate in my view, to mark the impact of his conduct upon the victims; R v Previtera (1997) 94 A Crim R 76. I take these consequences into account as consequences that unfortunately are suffered generally by the victims of misconduct such as this.

The offender

67 The offender was born on 4 May 1971. He is now thirty-nine years of age. He has no prior convictions recorded against his name.

68 The offender has given no evidence in these proceedings. He is, however, attributed with representations upon which I am asked to find that he is contrite and has demonstrated appropriate remorse. There are difficulties with this submission in the absence of evidence from him.

69 Evidence was called from his brother’s wife on 27 May 2009. She has known the offender for ten years and has had daily contact with him. She said he was a big part of their family and she knew him as a loving, gentle, kind, caring person. She acknowledged that he denied entirely these offences at first, but he came to her home and told her family that he wanted to plead guilty before he took that step. He told her that he could not live with this if he had done wrong, that he was sorry toward his victims, and for what he had done to his family. She said he was crying constantly since admitting he was guilty. Of his attitude to women, she said that he says the right things and does the right things and was as if a sixth brother to her. She said the family would be there for him regardless of the outcome of these proceedings.

70 His wife provided an affidavit made on 25 February 2009. She described their life together, including the birth of their children, then aged four and a half and three years. She told of the offender confessing to her that he had slept with the women but that he did not rape them. Then on 11 February 2009 he told her, “Tomorrow I’m going to tell my lawyers to plead guilty for me”. He repeated, “I’m going to plead guilty”. He told her that he did not admit the offences before because he did not want to bring shame to the family and did not want to lose her and their children. He continued,

“ … they were drunk. I thought that they wanted to do it but maybe they didn’t. If they didn’t then I have done something wrong. I couldn’t live with myself if they didn’t want to do it. What if it was our daughters?”

71 She suggested, according to her affidavit, that perhaps they did want to do it, to which he replied,

“Then why did they complain? I can’t live with myself if they didn’t want to do it. They would be going through hell. If they have to go through this court case then I would be making things worse for them”.

72 These are admirable sentiments if they reflect the offender’s true state of mind.

73 He told her the following day that he was sorry for having hurt so many people and agreed that he had now done the right thing. She said that he often breaks into tears and she believes him to be genuinely sorry for what he has done. She described him as a good and loving man and believed that he did not appreciate that the women were too drunk to say yes or no to him.

74 An affidavit by a bank officer, David Ryan, made on 21 April 2009 represents that he has known the offender for about sixteen years through work and sport. He came to know the offender’s brother also. He describes the offender as quiet, well mannered, and also polite, and a gentle and caring human being. He could not believe that the offender could have committed such crimes.

75 In yet another affidavit made on 23 April 2009 a solicitor, Gregory Jurd, said that over twenty years that he has known the offender he observed him to be both honest and ethical. He also came to know the offender’s family. He said he saw the offender on 2 April 2009 when he acknowledged his guilt, and remorse that his daughters will grow up without him. He also expressed regret for the hurt he caused to his family. He also expressed sorrow for the young women in the case and gave as one of the reasons for his pleas of guilty their protection from the rigours of cross-examination. He is said to have been emotionally distraught in the conference. He also was surprised at the charges brought against the offender.

Report by Dr John Albert Roberts

76 Exhibit 1 is a report from psychiatrist, Dr John Albert Roberts, written on 9 March 2009 upon his assessment of the offender from a consultation of one hour on 18 February 2009 and another of two hours on 5 March 2009. The report refers to lesions on the liver said by the offender to have been discovered by ultrasound. There is no further evidence regarding these. Their significance is simply unknown at this point.

77 He otherwise denied problems with his physical health but commented on his regret for the stress and pressure upon his family as a result of his actions. There was nothing of significance to this matter in the medical history taken from the offender by Dr Roberts.

78 Under the topic “Past Psychiatric History” it is said that secondary to his prosecution his general practitioner has prescribed Luvox, spelt elsewhere as Lufox, for nervousness and stress.

79 Beneath the heading “Physiological Concomitants of Anxiety” it is said that the offender was asked a series of questions to elicit his history of particular symptoms from the date of his birth until the present time, either before or after the onset of his present problems. It is said that the offender had no symptoms of disturbed memory or concentration; he sometimes had symptoms of chest pain, chest tightness or chest discomfort, which had its onset with the present matter; he had symptoms of air hunger with or without a tendency to hyperventilate in relation to his current court attendance; he had awareness of his heartbeat in relation to his court attendance; he had experienced stomach pain for which he underwent an ultrasound but did not know the results; he had a decline in appetite and weight due to the present matter; he had no disruption to bowel function; there was nocturnal perspiration and excessive perspiration in court.

80 All of the symptoms were related to the impact of this prosecution. He said he felt nervous, tense, anxious and depressed. He agreed that he exhibited nervousness now but not before.

81 I accept that it is more probable than not that the offender is experiencing anxiety, indeed severe anxiety, which is increasing as time progresses, developing from the anticipation of the punishment that he will face and the loss of face that he has suffered and will suffer as a result of these proceedings.

82 There follows against the word “Comment” immediately beneath this part of the report,

“Mr Nagi’s lack of psychiatric understanding and his perception of his behaviour over many years as abnormal is noted”.

83 I do not understand that comment in the light of what the report contains up to that point. The doctor then undertakes to comment upon “such in some detail”. It would therefore appear that the doctor is, at this point, referring to material later in his report upon which he advances the hypothesis that the offender has been the sufferer of a syndrome given the name “Don Juanism”.

84 There is no family history of psychiatric illness; he has a religious background; there is no history of childhood nervousness, tension or anxiety; his family he described in positive terms; his education and work history is discussed followed by reference to his marriage and his children.

85 In short, there is nothing remarkable in the life history of the offender that would indicate that those responsible for his nurturing and care through his formative years and thereafter contributed in any way to these crimes.

86 Thereafter the report continues beneath the heading “This Matter” with the paragraph,

“Mr Nagi has a history that commenced at approximately the age of twenty of frequent, multiple sexual contacts. Mr Nagi is now thirty-eight years of age. Since the age of twenty he has started to visit brothels. He met many women. He referred to meeting women in other locations including nightclubs, restaurants, parties and weddings.”

87 He said that the advantage of using brothels was “less headache - there were no strings attached”.

88 Without more than the representations by this offender the doctor finds that this pattern provided evidence of “Don Juanism”, said to be recognised as a characteristic of men demonstrating hyper-sexuality to mask deep-seated feelings of inferiority, or perhaps unconscious homosexual impulses, which they deny in their pursuit of women. It is also said to be a form of sex addiction known as satyriasis, defined as a morbid, insatiable sexual need or desire in a man, and is the equivalent of nymphomania in women.

89 The extensive sexual encounters he described were, according to the doctor, in the period from 1991 to 2002. He said he was having sex in the order of three to five times a week with multiple partners. In 1991 the offender turned twenty years of age. It is noteworthy that the vigorous pursuit of sexual activity is limited to the period ending before his marriage.

90 He claimed that the sexual activity with his wife was not as he wished. The report includes,

“Mr Nagi commented that he always practiced (sic) safe sex, he referred to enjoying sex.”

91 It would appear that he disregarded safe sex practices in the commission of these offences.

92 Regarding the victims, V1 and V2, it is said,

“Mr Nagi commented ... both were affected by substances - Mr Nagi’s behaviour towards these two victims appears to have constituted an opportunistic circumstance due to the apparent victims being affected by substances. Mr Nagi commented that his judgment had been lacking and that he saw the circumstances as an opportunity.”

93 In my judgment, to accept this as an accurate observation would be more generous to the offender than is appropriate.

94 Dr Roberts next provided a section beneath the heading “Review of Sexual Contacts” wherein the offender is attributed with the claims that he had sexual contacts in the hundreds over the years, during which he collected numerous phone numbers and in excess of eighty-six visiting cards, gathered from brothels where he went regularly for between five and ten years, spending between $2,500 and $3000 each year that he went. He said he began his pursuit of sex from the age of eighteen years. This period, whether it extended back to his age at twenty or at eighteen, includes the times when those who provided evidence of his reputation said that they knew him well.

95 The report continues that he denied homosexuality but

“... he described a degree of insecurity and doubt as to his capacity to perform, he commented that his confidence in regard to matters sexual was low. He described how, when he slept with girls, his confidence was improved and that he felt a need to sleep with more in order to become more confident.”

96 He denied ever using force or intended humiliation.

97 He is said to have presented with weeping and a depressive effect in these consultations. He claimed that if he could turn back the clock he would, and that even if he saw a female person naked now, he would not touch her. This would appear to be an expression of his progress towards rehabilitation.

98 The doctor found no evidence of disorder of thought or psychosis. In his summary and opinion Dr Roberts wrote of the obscure aetiology of compulsive sexual activity, in the context of feelings of inadequacy and inferiority in regard to the social activities attributed to the offender, who claims to have used his sexual encounters to gain self confidence within relationships where there was no risk of commitment.

Pre-sentence report

99 I have a pre-sentence report prepared on 20 April 2009. The author had access to the offender, his parents and siblings, and various documents listed on page 1 of the report.

100 The offender is the youngest member of a family that came to Australia from Lebanon in 1972. He was then an infant. In the years that followed his family became established in Australia and the Lebanese community where they enjoyed a good reputation. The offender developed in his formative years in an environment of traditional family values with strong bonds between the members of his family, learning respect for community values. He said that he was taught to be honest, to love and respect others, including his elders and women, and to assist people in need. He finds it difficult to explain his offending and recognises that he has shamed his family, particularly the women members.

101 The offender married in 2003 and he and his wife have two small children. He said that his marriage is strong and that he loves his wife to whom he claims to be committed. His wife spoke of their marriage based on love and of the offender’s attitude and kindness to their children. The offender said that his wife remains supportive even after he disclosed his offences to her, but she has been very emotional. She confirmed that she will remain loyal to him regardless of the outcome of these proceedings and she maintains that she forgives him. The report includes the following attribution to the wife,

“She expressed her understanding of the offences as ‘He pleaded guilty for sleeping with them’ and ‘I can’t believe he raped them...’ She indicated her belief of her husband’s offences as ‘Misjudgement of the victims’ and stated ‘ I could not believe that he did such things’.”

102 The report discusses the offender’s employment history, including employment as a security officer and his dream of becoming a policeman, thwarted because of a back complaint. His licence to operate a taxi was taken away as a result of these offences, after which he worked in a fast food business until he was denied bail.

103 The report refers to the history of his sexual interests including that in the psychiatrist’s report to which I have referred above. The offender is said to agree with the statements in the report but maintains that the sexual contacts there discussed occurred prior to his marriage. There is also reference to the sexual relationship between the offender and his wife as discussed in the psychiatrist’s report. The offender agreed with that portion of the report.

104 Beneath the heading “Attitude to the Offences” the following appears,

“Mr Nagi stated that he agreed with the full facts and appeared to express empathy for the victims by stating ‘I am extremely sorry. I apologised (sic) from the bottom of my heart for the ordeal I put them (the victims) through’ and ‘I am doing this (pleaded guilty) because I don’t want the victims to go through suffering to give evidence in trial’. The offender appeared to be conscious of consequences affecting his life and family. The offender stated that ‘My life has been destroyed’.”

105 There is reference to the offender being depressed for which he is prescribed medication in the form of Lufox. He said he finds it difficult to cope with the stress if he does not take the tablets. He said a psychiatrist has also counselled him on two occasions. I do not know whether these are the two consultations leading to the report discussed above.

106 His back problem persists, apparently from a disc injury to his lower back in 1990.

107 He is said to be concerned about his safety in custody because of threats made from or on behalf of the victim the subject of the offences charged in counts 5 and 6.

108 The offender was referred for psychological consultation, which I understand to have been the precursor to the assessment by Dr Roberts. As a result he is recommended for participation in one of the treatment programs for sex offenders in custody. The pre-sentence report suggests that the offender is in need of high-level intervention from the Probation and Parole Service to address sexual offending and sexual violence.

109 He is unsuitable for community service and ineligible for periodic detention. These options would not be sufficient to meet the objective gravity of the offender’s misconduct regardless of the factors upon which he might draw in mitigation of penalty.

110 The offender now carries the Human Immunodeficiency Virus. Exhibit 9 is a report from South Eastern Sydney Illawarra Health Service revealing that a dental practice upon which the offender attended was identified as failing to meet standards of cleaning and sterilisation of dental equipment used, with the result that there is a low risk that he may have been infected with hepatitis or HIV. The risk of infection is said to be extremely low.

111 There are further exhibits that relate to this question. Exhibit 2 is three documents from a doctor at a sexual health service. The first was written on 23 March 2009. It refers to the HIV monitoring tests and the results. It notes that he is currently asymptomatic from an HIV point of view. He has been commenced on antibiotic medication and antiretroviral therapy. It refers to the need for monthly HIV viral load monitoring. It refers to his distress at having been diagnosed with this disease. The document includes the following,

“Contact tracing of brothels he has visited since his negative HIV test in 2003 has been initiated by this clinic as per public health requirements. In addition, however, we need to ascertain whether the three sexual assault victims have been contacted for appropriate HIV screening”.

112 There is some ambiguity in those sentences to the extent that it is not entirely clear to me whether the contact tracing was initiated recently or after a test in 2003; but it is probable the passage intends to represent that since his diagnosis, there has been contact tracing of brothers that he has visited since an HIV test in 2003 that proved to be negative.

113 The second document is written on 28 April 2009. It provides a summary of the referral to the service on 19 March 2009 after a positive test result on 16 March 2009. The results of the subsequent investigations of the offender are summarised. It is said that his level of lowered immunity puts him at significant risk of opportunistic infections and certain types of malignancy, none of which are evident currently. The medication prescribed is discussed. The document includes the following,

“It is likely that Mr Nagi acquired HIV several years ago to have this degree of immunosuppression, but impossible to date and could effectively be any time from 2003 onwards.”

114 The final document was written on 25 May 2009. After referring to investigation of some periods of chest tightness by a cardiologist, the report continues,

“From an HIV point of view, six weeks after commencing antiretroviral therapy, Mr Nagi’s HIV viral load has reassuringly dramatically fallen...”

115 He continues to be asymptomatic.

116 Exhibit 3 is a policy directive from New South Wales Health. This document relates to confidentiality of HIV related information and is the protocol relevant to those considerations. It was part of material presented in relation to the application to suppress the publication of the offender’s infection.

117 I have a document written on 24 February 2009 from a Dr Anthony Sved, a specialist in periodontics and implant surgery. It reports that he has moderate to advanced chronic inflammatory periodontal disease requiring care from a specialist periodontist. In a further document written on 21 March 2009 it said that he has been a patient of Dr Sved for about three years. It is said that he was reliable and prompt with his appointments, always followed home care instructions, and was always courteous to his staff.

118 Exhibit 5 is a document provided by a Dr Medhat Guirgis. This was provided at the request of the offender’s mother. The doctor treated the offender in the early 1990s for his disc injury in his lower back. It is said that during the period he was under his care he always displayed a pleasant personality, civilised manners, and enjoyed a good relationship with members of staff and other patients. Dr Guirgis speaks well of the offender’s family.

119 Exhibit 6 is a document provided by Mr Peter Powderly who has known the offender for thirty years. He said that the offender has not caused him any trouble. His parents are good people as are his siblings.

120 There are further references; one written by a Mr Anthony Haddad; he has known the offender since September 2005; he employed the offender as a taxi driver; he always came to work well presented and in uniform; he was always well mannered and always spoke politely to him and to his staff; he was found to be reliable, honest and trustworthy; there were no complaints ever made against him. Mr Haddad was shocked at hearing the news of these charges.

121 Andrew Innes has known Hassan Nagi for six years through his friendship with the offender’s brother. He knows the extended family. The offender has been a visitor to his home and has provided transport for his ailing father. He also assisted Mr Innes in other regards relevant to his father’s ill health. He found the offender to be honest and trustworthy, demonstrating genuine interest and concern for his father’s ongoing welfare. He was generous with time and was completely reliable. He said he is a caring and devoted father to his children. He has always seen him to be courteous and respectful and compassionate.

122 Another reference from a passenger speaks of having had the offender drive her on many occasions. She has never felt unsafe or fearful. She always found him to be trustworthy and a true gentleman. She was shocked at the news of the charges.

123 A further referee, a work companion of the offender in the security industry, found him to be professional, of the highest integrity, demonstrating utmost respect toward her and other female colleagues. She said he was always honest, courteous and very helpful. She was extremely saddened by the news of the charges.

124 Another young lady, Ms Bradley, provided a reference. She was a neighbour and has known him since 2000. When he was single he was nice, well mannered, always respectful, and since his marriage it was apparent to her that he and his wife have a wonderful life. These charges are out of character with the man she knows; she is equally surprised at the prosecution.

125 I have a document addressed directly to me written in May 2009 from a Holden dealership. The author has known the offender for twenty-one years, and they have become best friends. He writes that they have been out together on many occasions. The offender has never caused any trouble, has never instigated arguments. He always set a good example for everyone else. He is said to be a man of integrity. He is respectful, particularly towards women. He is said to be generous. This conduct is out of character.

126 There is a reference signed by two people, also neighbours of the offender, whom they have known for some thirty years. They describe him as caring and helpful.

127 Then there is a document from a taxi service, from the Customer Service Officer, telling the offender that he received a complimentary report from a passenger he recently conveyed.

128 Finally there is Exhibit 7, which is a statement made by the offender on 28 March 2009. It represents that on 26 March 2009 he was at home in the afternoon when his mobile phone rang. The phone indicated that the call was from a private number. A female said to him,

“You think you’re going to get away with it, you cunt. You’re going to die. I’m going to get you and when you go to Silverwater or another gaol you’re going to cop it, you silly cunt. You’re going to pay for it.”

129 Thereafter the offender contacted solicitors. He claims to have recognised the voice to be of one of the victims in these matters and expresses fear for his safety and for that of his family. There has been no further material put before me since this document was tendered on 27 May 2009 indicating whether since then there was any further threat whilst the offender has been in custody. The statement was recorded by police officers upon the matter being reported to them at St George Police Station. That material was offered in further support of the proposition that the offender will experience more hardship than might otherwise be expected whilst he is in gaol.

Findings

130 I shall now turn to the findings to be made.

131 Aside from the possibility that the offender might have been infected with hepatitis or HIV as a result of the treatment given at the dental service, the subject of discussion in Exhibit 9, there is no other evidence directly pointing to the source of the offender’s infection. It is not possible to say with any degree of certainty whether the infection was the result of his attendance at that dental service or the product of unsafe practices in another context. It is not possible to say that he was infected at the time of the commission of these offences, notwithstanding the passages to which I have referred in the documents produced from the sexual health clinic. In those circumstances the infection with HIV does not provide a circumstance of aggravation to be brought against the offender, but it does sound in the assessment of the punishment that he will experience whilst in custody, to which I shall refer.

132 There can be no finding other than these were objectively serious offences. The offender embarked upon what one might see to have been predatory behaviour in pursuit of his sexual gratification at the expense of and in disregard of his victims. In each case there was penile penetration. In one case that included anal penetration and there was no protection by use of a condom.

133 There are relevant aggravating and mitigating factors to be brought to account from s 21A of the Crimes (Sentencing Procedure) Act.

134 There were significant consequences suffered by each of the victims. As I indicated earlier, however, I cannot conclude that their emotional harm was substantial: s 21A(2)(h). Although their victim impact statements provide a graphic reminder of the sense of violation that victims of offences such as these suffer, they provide no more than their subjective assessments of their emotional burden since the offences, and it would be improper, in my judgment, to make a finding that their emotional harm was substantial upon the material that has been presented standing alone. As I have indicated though, the Court has the benefit of their descriptions of what they have suffered against which to assess the objective gravity of the offences that left them with the burdens they described.

135 The offender occupied a position of trust in his role as a taxi driver. Members of the community who might be at risk of offending were they to drive after drinking, unable to avail themselves of other public transport, who resort to the taxi industry to safely make their way home, place their trust in those who provide these services to convey them safely to their destination. Thus, in the case of V1 and V2 this is to be brought to account as an aggravating factor; s 21A(2)(k); Ali v R [2010] NSWCCA 35.

136 In each case the victim was vulnerable: s 21A (2)(l). All three were taken to locations where there was little chance, if any, of having help from passers by. Moreover, in the case of V1 and the case of V2, they were heavily intoxicated and unable to resist the sexual assaults that they suffered.

137 I am satisfied beyond reasonable doubt that the offender took advantage of the victims’ intoxication to pursue his sexual gratification at their expense and without their consent. There can be no doubt that he was aware that they were intoxicated.

138 It was said on behalf of the offender that there was spontaneity and lack of planning demonstrated in these offences. I do not agree. There was premeditation to be inferred from the fact that in each case the offender drove his victim to a location where there was little, if any, risk of being interrupted. In the case of V1 and V2 I find that he exploited the opportunity presented by their intoxication and that when they were alone, by whatever means, he had them enter his taxi. In the case of the third victim he picked her up and was obviously speaking of her into the telephone, whether or not there was in fact a call in progress as he did so. The inference to be drawn is that he collected her from outside of the football stadium and drove her to the location where he committed the offences upon her with at least some measure of planning and organisation with that outcome in mind.

139 I am satisfied that his offences involved planning such as to meet the phrase “planned criminal activity” in s 21A(2)(n).

140 There are limited mitigating factors to be brought to account. There are others that have been advanced but I am not persuaded that they apply to this offender.

141 First, the offender does not have any record of previous convictions: s 21A(3)(e). He shall have this to his credit.

142 Second, in another context he is said to have been a person of good character: s 21A (3)(f). There is abundant evidence from people who think highly of him. Perhaps this reflects more his reputation rather than his flawed character, evident from the offending for which he is to be punished, and also evident from the extent to which he has been able to mask from his wife his disrespect for women revealed in his offences and perhaps in his past. Be that as it may, to the extent that there are people who have provided evidence that he is in another context to be seen as a person of good character, he should have that brought to account.

143 Third, I am not persuaded that the offender is unlikely to re-offend; s 21A(3)(g). His disregard for the women he assaulted, and his wife and family whose trust he was prepared to betray in this way over the period from 2003 until his arrest in 2007, and what might be seen to be the predatory nature of his misconduct, cause me to doubt the veracity of his claimed insight into his wrongdoing. The statements attributed to him when he is said to have expressed his regret for what he has done are not entirely without qualification. Moreover, those expressions have come very late in the day. If the history attributed to him by Dr Roberts is in any way accurate, when taken with the misconduct upon which he is to be sentenced today, he has demonstrated disrespect for the female gender and a willingness to pursue his own gratification regardless of them and their interests.

144 Fourth, I am not persuaded that the pleas of guilty reflect contrition and remorse so much as they are the product of the recognition that his conviction was probably inevitable when one considers the limited weight a jury would be likely to give to the defence case to be presented at trial, revealed in the application for separate trials and the admission of coincidence evidence. I am not satisfied that the offender has met the burden required by s 21A(3)(i).

145 The offender will have the benefit of his pleas of guilty: s 21A(3)(k). For the utility they have provided, as earlier indicated, the sentences that would otherwise have been imposed shall be discounted by ten per cent.

146 Overall the report from Dr Roberts I did not find persuasive. His analysis is drawn upon the representations he attributes to the offender who has not given evidence of those facts and has not been tested upon them by way of cross-examination. Before the Court may accept the opinions of Dr Roberts as reliable it must accept it is more probable than not that the offender, now thirty-nine years of age, before his marriage in 2003, in the period bounded by 1991 and 2002 spent a good part of his free time at nightclubs and brothels and in addition exploited the opportunities presented at restaurants, parties and weddings in the constant pursuit of sexual gratification to overcome his feelings of inadequacy or inferiority. Such is elevated to the status of a syndrome given the name “Don Juanism”. There is no evidence of this pattern at all from anyone who has spoken to having known the offender over that extended time. Quite to the contrary, he is described in various ways including as a loving, caring and kind man who cannot be compared to the person who has committed these offences. Moreover, implicit in the representations attributed to the offender is the proposition that he was a master seducer of women with great success in those pursuits, and therefore perhaps deserving of the characterisation as one with the reputation such as is given to the historical figure, Don Juan, blessed with charm and persuasive skill without the need to resort to the base approach taken by the offender with these victims. Were he possessed of such charms, one would wonder why he would need to take his sexual gratification as he did with these women. Furthermore, whatever his needs were during the years leading to his marriage, to accept those representations as reliable one must accept that he was able to suppress those needs once married, except on the occasions upon which he is to be sentenced now.

147 Even allowing the offender the benefit of the opinions of Dr Roberts, I do not find that they provide any justification for his gross behaviour, and they do not provide any basis upon which to mitigate that behaviour or the punishment it deserves.

148 Reliance was placed upon the offender’s infection with Human Immunodeficiency Virus in mitigation of the sentences to be imposed upon the premise that his incarceration will impact more heavily upon him. I have already commented today that the evidence upon that topic was sparse. I am asked to take judicial notice, as it was once termed, of the fact that people so infected in a custodial setting are kept in circumstances where there is the least risk of infection to others, and to protect them from harm at the hands of those in that setting who might wish to cause them difficulty because of their infection. Upon reflection I am prepared to take note that it is likely that the punishment he suffers will be greater by reason of those matters, but, as earlier indicated, it is difficult to quantify in the absence of evidence touching upon those various points.

149 On the other hand, there is no doubt in my mind that in gaol he will be given the benefit of the care that he needs through Justice Health. I can also take judicial notice of the fact that Justice Health does provide care for those from the community who unfortunately find themselves in gaol, and that in light of the nature of the illness this man suffers, there will be measures available in there to provide him with his treatment against the risk of the spread of infection.

150 For these reasons, and as indicated earlier in arguendo, I find that there are special circumstances in this case that will require an adjustment down in the non-parole period component of the sentence to be served. I also bring to account in this regard when imposing sentence on the fifth and sixth counts that the custodial component of those sentences must be shortened to ensure that the overall sentence reflects my finding of special circumstances.

The sentences

151 There will be part accumulation of these sentences. Those for counts 3 and 4 will commence two years after those for counts 1 and 2 and those for counts 5 and 6 will commence two years after those for counts 3 and 4.

152 When one looks at the facts and circumstances for each offence it does seem to me that comparable sentences should be imposed in respect of all offences but for the allegation of digital penetration which, in my judgment, is to be seen as less serious than the penile vaginal and penile anal penetration involved in the other crimes.

153 I would have imposed on counts 1, 2, 4, 5 and 6 sentences of eleven years overall, but they will each be reduced by ten per cent. In the case of count 3 I would have imposed a sentence of eight years; that is also to be reduced by ten per cent for the utility of the plea of guilty.

154 I shall now turn to the imposition of the sentences. In respect of counts 1 and 2, after applying the discount of ten per cent, I specify a non-parole period of imprisonment of seven years, five months and three days commencing on 19 May 2009 and expiring on 21 October 2016.

155 I specify a further term of imprisonment to commence at the expiration of the non-parole periods. In each case that is two years, five months and twenty-one days commencing on 22 October 2016 and expiring on 11 April 2019.

156 The offender will be eligible for the consideration of parole at the expiration of the non-parole period subject to the sentences I am about to impose.

157 The overall sentences for counts 1 and 2 therefore is one of nine years, ten months, twenty-four days, including the non-parole period of seven years, five months and three days. The sentences for both count 1 and count 2 are entirely concurrent.

158 For count 3 the overall sentence is one of seven years, two months and twelve days. It shall commence on 19 May 2011. The non-parole period shall be five years, four months, twenty-four days and I impose a term of imprisonment for that period commencing on 19 May 2011 and expiring on 12 October 2016.

159 I impose a further term of imprisonment at the expiration of the non-parole period of one year, nine months and eighteen days. The offender will be eligible for the consideration of parole at the expiration of the non-parole periods subject to the other sentences to which he will be subject.

160 The overall sentence therefore for that offence, I repeat, is seven years, two months and twelve days including the non-parole period of five years, four months and twenty-four days.

161 The sentence for count 4 is overall nine years, ten months and twenty-four days. In respect of that matter I specify a non-parole period of seven years, five months and three days. That shall commence on 19 May 2011 and expire on 21 October 2018.

162 I impose a further term of imprisonment of two years, five months and twenty-one days to commence at the expiration of the non-parole period. That shall commence on 22 October 2018 and expire on 11 April 2021.

163 The overall sentence is nine years, ten months and twenty-four days including the non-parole period of seven years, five months and three days commencing on 19 May 2011.

164 The sentences for counts 3 and 4 are entirely concurrent but accumulated by two years upon the sentences for counts 1 and 2.

165 The sentences for counts 5 and 6 are also accumulated. They are accumulated by two years on the sentences imposed for counts 3 and 4. The terms of these sentences shall commence on 19 May 2013.

166 These sentence for counts 5 and 6 are entirely concurrent as between themselves. They shall each be overall sentences of nine years, ten months and twenty-four days including a non-parole period of five years, five months and three days commencing on 19 May 2013 and expiring on 21 October 2018.

167 I impose a further term of imprisonment to commence at the expiration of the non-parole period of four years, five months, twenty-one days commencing on 22 October 2018 and expiring on 11 April 2023.

168 I repeat that the overall sentence for counts 5 and 6 in each case is nine years, ten months and twenty-four days including the non-parole period of five years, five months and three days.

169 I have reduced the statutory non-parole period in respect of those sentences to give effect to my findings of special circumstances and in light of the accumulation that has been ordered.

170 Thus, the overall sentence to which the offender is now subject is one of thirteen years, ten months and twenty-four days. The non-parole period to which he is subject overall is nine years, five months and three days. He will then be subject to parole, if he is released to parole at the expiration of the non-parole period, for a period of four years, five months and twenty-one days.

171 He shall be eligible for consideration of parole at the expiration of the non-parole period specified for counts 5 and 6.

172 All exhibits are to remain on file for twenty-eight days.

173 The offender should be kept in custody at a place where he will have available to him the treatment required for his HIV. In response to the application by Mr Lloyd QC I ask Corrective Services to give consideration to him being held at a facility within the Long Bay Prison complex.

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11/08/2011 - The initials of the victims have been replaced with V1, V2 and V3 respectively. - Paragraph(s) 1, 7, 36, 40, 45, 58, 61, 63, 64, 92, 135, 136, 138