R v Husan Hasanovic

[2020] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:	R v Husan Hasanovic [2020] NSWDC 40
Hearing dates:	21 February 2020
Date of orders:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Non-parole period of 18 months with parole thereafter of 12 months giving rise to an overall term of imprisonment of 2 years and 6 months. Form 1 taken into account.
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child between 10 and 14 — 2 counts — Guilty pleas in Local Court — 25% discount for early plea — Victim 12 years old — Offender 27 years old — Drunk at time of offence — Offender had lengthy criminal history but no previous sexual offences — Risk of re-offending high but connected to previous alcohol and drug abuse — No drug or alcohol use since arrest.
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999, s 25AA(1) Crimes Act 1900, s 66C(1)
Category:	Sentence
Parties:	The Crown Mr Husan Hasanovic
Representation:	Counsel: Ms. J. Turner (ODPP) Mr. E. James (Offender) Solicitors: Mr. A. Agar (Offender)
File Number(s):	2019/69799

1. HER HONOUR: The offender is before the court for sentence on one charge pursuant to s 66C(1) of the Crimes Act 1900 that on 14 February 2019 at Chester Hill he had sexual intercourse with the victim, whose name is initialised on the charge sheet, who was at the time aged between 10 and 14, namely 12. The maximum penalty for this offence is a term of imprisonment of 16 years with a standard non-parole period of 7 years.
    
2. When sentencing for this matter he asks that I take into account an additional Form 1 offence, also an offence contrary to s 66C(1) of the Crimes Act, 1900 occurring at the same time. The maximum penalty would have been the same if it were sentenced separately.
    
3. The agreed facts have been signed by the offender and on behalf of the Director of Public Prosecutions.  They are tendered in these proceedings.  I accept from those that on 14 February 2019 the victim was a 12 year old girl due to turn 13 in about six weeks.  She had spent some time with her boyfriend during that day and he then walked her to Chester Hill station.  She was due to meet her mother at Central but got on the wrong train.  She got off the train two stops later intending to catch another train to her grandparent’s house.  She walked across the platform to do that and saw the offender who was standing nearby smoking a cigarette.  She asked him for one, he asked her how old she was and she said she was 16.  He rolled her a cigarette and they had a brief conversation during which she told him her name. 
    
4. They then both got on the next train, it would appear back to and got off at Chester Hill.  He asked if she wanted to come back to his house.  According to the facts the victim felt uncomfortable and suggested that she would meet him later and gave him her old mobile phone number.  He then said “you’re coming back to my house.”  The evidence does not suggest that he used any force or acted in any forceful or aggressive way when making that comment. 
    
5. They then walked to his house which was a granny flat at the rear of another property.  They walked inside and the victim sat on the couch.  He went into his bedroom and came back to the lounge with his shirt off.  He asked the victim if she wanted to have some fun and unzipped her jacket.  He took her to his bedroom and put her on his bed.  He held her arms above her head with one of his hands and lay on top of her.  He removed her pants with the other hand and inserted his finger into her vagina a few times.  This digital penetration is the subject matter of the Form 1 offence.  He then pulled his own pants down and told her to suck his penis.  She did not do that.  He put his penis into her vagina and thrust many times.  This penile vaginal intercourse is the subject matter of the substantive offence.  After that he got up and went to the bathroom to shower.  The victim got dressed and left. 
    
6. She walked to Chester Hill railway station and called her boyfriend from a pay phone.  He did not answer initially.  She then got on a train heading towards Central.  She borrowed a phone from a person in the train and called her boyfriend again and made a complaint to him about the sexual assault.  She asked him to add her mother to the call which he did, but at that stage did not inform her mother of the complaint she had made to him.  Her mother then picked her up from the next station Wiley Park.  When they arrived home she went straight to bed. 
    
7. She did not disclose the sexual assault to her mother until the following day.  When she did so her mother asked if she wanted to report it to the police which she did, so they went to Bass Hill Police Station and reported the matter.  The victim assisted police by taking them to where the offender lived.  She was taken then to the Randwick Children’s Hospital and examined.  There is no evidence of anything found as a result of this examination.  She ultimately identified the offender from a photo board identification process.
    
8. Police obtained a search warrant for the offender’s premises which they executed in the early hours of 27 February 2019 and arrested the offender.  He did not participate in an interview.  He was charged with these and other offences.  He has been in custody bail refused since the time of his arrest, namely 27 February 2019. 
    
9. He pleaded guilty to these two offences at an early stage in the Local Court.  As a result of his early plea of guilty, pursuant to the provisions of the Early Appropriate Guilty Plea scheme, he is entitled to a 25% discount from what might otherwise be the appropriate sentence. 
    
10. It is necessary in any offence to determine the objective criminality.  This is a serious offence in its own right because it amounts to an offence of child sexual assault.  The victim was only 12 and the offender was 27, a large disparity in ages.  There is no suggestion or evidence that the offender ever turned his mind to how old the victim was, whether or not she told him she was 16.  The nature of the sexual contact is a factor in determining the objective criminality and here it was actual penetration including digital and penile vaginal penetration.  This is relatively serious form of sexual contact, particularly so the vaginal penile penetration where there is a risk of injury, disease and pregnancy.  There is no evidence that he used a condom or anything along those lines.  She was only a child and ought not have been used by an adult in a sexual way at all.
     
11. The court is, and has been for at least 30 years and continues to be, well aware of the trauma of sexual abuse on children which is almost always serious and in some cases can have a lifelong traumatic outcome.  In this case there is a victim impact statement which I have read and taken into account written on behalf of the victim by her mother.  I accept that this victim has some ongoing traumatic sequalae as a result of this offence.
     
12. Amongst the many things that victims of child sexual assault frequently feel, and it would appear this victim has suffered, are feelings of shame, guilt, anxiety and anger.  These traumatic outcomes are well-known to the Court, and I sentence this offender having taken into account what have been the well known traumatic impacts of child sexual assault for many, many years.
     
13. The victim is fortunate to have a mother and grandmother to provide her with support, as they have already done.  It is to be hoped that she will soon start to recover from the impact of this offence and to regard herself not as a victim, but as a survivor. 
     
14. There are other aspects of this offence, however, that must also be taken into account when determining the objective criminality.  The offence itself is a one off offence and would appear to have continued for a very short period of time.  Further, there is no evidence of any aggression or physical violence in addition to the inherent violence of any sexual assault.  They are factors which I take into account when assessing the overall objective criminality. 
     
15. Assessed overall it seems to me that this particular offence falls into the bottom of the range of offences capable of being charged under this section. 
     
16. As I have already said, this is a plea of guilty entered early and for these two reasons the standard non parole period does not apply strictly, but I must take it into account as some form of guideline. 
     
17. Dealing then with the subjective circumstances involving the offender, I accept that he is now 28.  He has a relatively lengthy criminal history, but of note there are no offences of a sexual nature on his criminal record.  He has been dealt with in the Children’s Court for one serious and perhaps other less serious offences.  He has convictions in the adult court for intimidating, resisting and hindering police, for stalking and intimidating.  There is a conviction giving rise to a bond for an offence of habitually consorting with convicted offenders after a warning, which apparently occurred over a two year period in 2013 and 2015. 
     
18. As will become clear, the offender until relatively recently was a fairly high ranked member of the Nomads outlaw motorcycle gang.  Almost certainly that conviction for consorting had connections with that association.  He has larceny offences, including goods in custody and shoplifting. 
     
19. There is a conviction with a term of imprisonment for robbery in company committed in 2012, and sentenced in March 2013 to a period of 2 years imprisonment with a ten month non parole period.  The most recent entry on his criminal record would appear to have been in January 2014 for assaulting and resisting an officer. 
     
20. The custodial history shows that before he was arrested for this offence, he appears to have been last released from gaol in October 2014 and thereafter did not come back into prison until his arrest for this matter.  His criminal history therefore disentitles him to any leniency, but does not operate in my view as a factor of aggravation. 
     
21. As I have already said, of particular note is that there are no offences of a sexual nature on his record.  This is an offence out of character, at least compared to the offences that he has committed in the past.
     
22. There is before the Court a sentence assessment report undertaken by Community Corrections and a psychological report from Ms Van De Velde.  I found the psychological report in particular to be very helpful.  I accept from that, which to an extent is corroborated by material gathered by Community Corrections and also the affidavit completed and tendered by his brother, that the offender was born on Bosnia.  Because of the ongoing war in that country, he and his family moved around and did not have a settled life until the family migrated to Australia in 2002.  His parents separated shortly after that move and he lived with his father.
     
23. He did not have a good relationship with his mother.  His father, according to the history given, used alcohol excessively and there was physical discipline.  He did not have a good relationship with his father, even though his father was his primary carer when he was a young man.  I accept that he had a somewhat dysfunctional upbringing because he was not provided with proper discipline and a moral compass.  He started drifting to stay at friends’ places and left home at the age of 15.  It was in this context that he joined the Nomads motorcycle gang, ultimately becoming a sergeant of arms. 
     
24. He felt a sense of belonging in that organisation, and that is a history, of which this Court is aware, which has been given by many who have found their way into outlaw motorcycle gangs. 
     
25. He left school in year ten at the age of 15, effectively being told to leave because of poor behaviour.  He did not do well at school both because of his behaviour and also the need to learn English and some of the consequences of that. 
     
26. He worked as a painter briefly after leaving school and then, in his own words, started to hang around in street gangs.  After being released from custody on an earlier occasion he did undertake some formal employment as a labourer and Gyprocker, earning money lawfully.  I accept that he has plans to work in the building industry when he is released from custody and does now have a motivation to improve his buildings skills, perhaps that being available to him whilst he remains in custody.
     
27. He had a long term relationship with a woman with whom he had two children, who are now aged three and one.  I accept that he has a very strong relationship with the children, but that his involvement in the motorcycle gang and ultimately his abuse of alcohol meant that his relationship faltered.  I accept that at about the time his daughter was born he left the Nomads and started to live a more pro-social life. 
     
28. I accept that there has been some contact between the Nomads and his family, providing some support since he was arrested, but that they have shunned him, more probably than not because of the nature of this offence.  He would appear not to have any contact or relationship with the Nomads anymore, and I note in the custodial record he is referred to as “an ex Nomad”.
     
29. The significant issue, in my view, behind his offending on this occasion and which affects an assessment of his rehabilitation is the fact that he had become addicted to alcohol and probably drugs.  He started drinking when his was 15 at a normal rate.  He started using cocaine when he was 18, but again was not overusing it.  One of his brothers died in 2018 and I accept that he then started to abuse alcohol excessively and use cocaine excessively, about a gram a day in order to counteract the effects of the alcohol he had drunk the night before.  His report to the psychologist of the impact of his brother’s death on him is supported by the affidavit of his brother, which is tendered.  I accept that it had a significant impact on him and led to his decline, effectively into alcoholism and drug use.
     
30. I accept that when he committed the offences before me, more probably than not he was drunk.  That does not operate as a mitigating factor, but it does have an impact ultimately on my assessment of his prospects of rehabilitation.
     
31. Ms Van De Velde offers the opinion that alcohol use can lower inhibitions, increase impulsive behaviour and impaired thinking and problem solving.  Whilst the Crown submission would appear to be that that opinion would be rejected, I can see no logical reason to do so.  It is well known to the Court that alcohol use lowers inhabitations, increases impulsivity and certainly impairs thinking and problem solving.  Whilst it does not operate as an excuse and certainly not a circumstance of mitigation it does, in my view, explain to an extent why it was that the offender behaved in the way he did that day without giving thought to the age of the victim, the impact on her and particularly so in circumstances where there is no suggestion at all that he had ever behaved in a similar way in the past.
     
32. Whilst there is no evidence to suggest that he presents to either Community Corrections or the psychologist displaying any form of sexual deviance or proclivity to paedophilia or similar, nonetheless I accept the opinion of both Ms Van De Velde and the result of the Static 99R actuarial assessment that his risk for future sexual reoffending is above average, or in the above average risk category.  I do, however, note so far as the latter is concerned, that is the Static 99R Assessment, that the reasons advanced for his being categorised as above average are the fact of his criminal history and the fact that the victim was a stranger.  His criminal history is, as I have said, without any prior sexual offending at all, which therefore it seems to me minimises to some extent the impact that that has in reality on his risk of re offending.  Further, that assessment would not appear to have taken into account the fact he was at the time probably an alcoholic, if not at the very least abusing alcohol and therefore did not take into account the role that alcohol played in his poor judgment at the time, which, it seems to me, is a relevant factor in terms of assessing risk of re-offending and therefore prospects of rehabilitation.
     
33. For reasons that I have already stated, I do accept that there was some connection with the fact that he was drunk and his offending and therefore I accept that his prospects of rehabilitation must be assessed not just on an actuarial assessment or a risk assessment undertaken by a psychologist, but also taking into account whether or not the risk of excessive alcohol use can be minimised.  His risk of re-offending I accept is high, but in large part is connected with his ability to remain free of alcohol use and drug use on his release from custody and to deal with the underlying grief factors that were connected with his alcohol abuse from 2018 onwards. 
     
34. He will need assistance to do that both whilst he remains in custody and in the community, and whilst in the community both he and the community would benefit, and the prospects of rehabilitation would be improved, if this supervision is for a longer than normal period.
     
35. I accept that he has demonstrated genuine remorse and contrition in the comments he has made to the psychologist, to the Community Corrections officer and also by the plea of guilty.  There is also before the Court a letter from his former employer speaking highly of him at least in that regard and advising that work is available to him in due course on his release from custody.
     
36. The s 5 threshold for imprisonment is clearly reached in this case and because of the nature of the offence only fulltime custody is available. When determining the length of that prison term I am referred to the provisions of s 25AA(1) of the Crimes (Sentencing Procedure) Act, 1999 which provides that I must sentence in accordance with the sentencing patterns and practices at the time of sentencing and not at the time of the offence.
     
37. In this case it seems to me that it makes little difference because sentencing patterns and practices that were relevant as at February 2019 are essentially the same as they are today.  However to the extent that it might be thought that they were less, and that it is necessary to have regard to the current sentencing patterns and practices, I have had regard to the statistics published by the Judicial Commission for these offences, but as I have said, it seems to me that the sentencing practices both at the time of the offending and as at today are in reality the same.
     
38. The sentence of course must carry an element of general deterrence.  At the beginning of this sentence I categorised all child sexual assault offences as being serious, and they clearly are.  The impact for many years, and sometimes for life, of sexual offending on children is well known and it is for that reason, if nothing else, that sentences for offences such as this should send a very clear message to the community that prison terms will almost always follow for those who decide to use children for their own sexual pleasure.
     
39. I accept that the offender has not used drugs nor alcohol since going into custody and that he has gained a degree of insight into his offending behaviour, and the connection between his alcohol use and the fact that he offended on this occasion.
     
40. The Form 1 offence must be taken into account in a meaningful way.  Whilst it was part of the same incident, it was a separate form of penetrative sexual assault and that must be taken into account.
     
41.  I have ultimately concluded that after taking into account the discount for the plea of guilty the overall term of imprisonment relevant for this offence is 2  years and 6 months.  There is a finding of special circumstances, namely that he needs a somewhat longer than normal period of supervision in the community to deal with alcohol and substance abuse and grief issues and to reduce any prospect of recidivism as a sexual offender.
     

1. I will be setting a non-parole period of 18 months with a parole period of 12 months. I also formally warn the offender of the application of the Crimes (High Risk Offenders) Act 2006. This offence is defined within that Act as a serious sex offence and therefore the Act applies. The warning is that it would be open to the Attorney General of New South Wales to approach the Supreme Court for an order having this offender declared a high risk offender and to seek that he not be released from custody either at the end of the non-parole period, or at the end of the overall term, or as I understand it, to ensure that various conditions including electronic monitoring in the community and the like are put in place.
    
2. For those reasons I make the following formal orders:

1. The offender is convicted.

2. He is sentenced to a non-parole period of 18 months’, commencing 27 February 2019, expiring 26 August 2020, with parole thereafter of 12 months, commencing 27 August 2020, expiring 26 August 2021, giving rise to an overall term of imprisonment of two years and six months, commencing 27 February 2019, expiring 26 August 2021.

44. I note I have taken into account the Form 1 offence when sentencing and I further note warning given of the application of the Crimes (High Risk Offenders Act) 2006.

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Decision last updated: 16 March 2020