R v Joseph SAHYOUN

[2008] NSWDC 351

CITATION:	R v Joseph SAHYOUN [2008] NSWDC 351
JUDGMENT DATE:	19 December 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Sentenced to two years imprisonment suspended on the condition of entering into a good behaviour bond.
CATCHWORDS:	CRIMINAL LAW - Sentence - sexual intercourse with child between 10 and 16 - victim impact statement - remorse
LEGISLATION CITED:	Crimes Act 1900 s66C(1) Confiscation of Proceeds of Crime Act 1989
PARTIES:	Regina Joseph Sahyoun
FILE NUMBER(S):	2008/14220
COUNSEL:	Ms Nash (offender)
SOLICITORS:	Ms Roberts (NSW DPP)

JUDGMENT

1. This is a case about a young man who has quite uncharacteristically committed a very serious crime. Two of the important features in this sentencing are the seriousness of the crime and the significance of the young man’s contrition. The young man is Joseph Sahyoun.

2. When he was twenty years of age and at university and working in his father’s tobacconist shop, he attracted the attention of a fourteen year old school girl. When I say that, I mean that they became mutually attracted to each other. She used to call in to see him at his work. They used to embrace and kiss one another.

3. On 11 April 2007, she came to his work and he offered to drive her home. On the way home they parked near a park. They began kissing again and then decided to get into the backseat. He asked whether she wanted to have sexual intercourse. As the agreed facts say, the complainant “said she didn’t and wanted to wait until she was married. The offender continued to ask the complainant questions regarding her sexuality and virginity and eventually the complainant agreed to have sexual intercourse.”

4. They both got undressed and he penetrated her with his penis into her vagina. It was a very painful experience for the complainant. He removed his penis and put on a condom and reinserted his penis and continued with the act of intercourse. It stopped because the complainant’s sister phoned her twice during the sexual encounter. They stopped, got dressed and he drove her home. They continued to see one another for another month or so.

5. In November that year the complainant reported the matter to the police. Mr Sayhoun was arrested. He initially denied the offences.

6. What he did is a crime against s 66C(1) of the Crimes Act 1900. It carries a maximum penalty of sixteen years imprisonment. The crime is having sexual intercourse with a child between the ages of ten and fourteen years.

7. As Ms Roberts who appears for the prosecution pointed out, the Court of Criminal Appeal has said that the purpose of such crimes is to protect children from sexual conduct, even though they may be willing participants. After some persuasion, the complainant in this case became a willing participant. Hence, Joseph Sayhoun found himself charged with a very serious crime. He has no criminal record.

8. There is a victim impact statement by the victim. She said that her life has totally changed from one world to another. She can no longer trust even people who are close to her. She started drinking and smoking as a result of her turbulent emotions. Her grades at school have dropped. She finds it hard to remain at school and finds that she has problem trusting the male teachers. The relationship within her family is strained. She feels she needs to punch things and throw things when she is angry. She feels that she has been forced to grow up prematurely and not experience her childhood. She is from a religious family and feels very ashamed at what she has done. There is a stigma attached to her because some people know about it. She has been called offensive names. It has caused a lot of heartache in her family. As she correctly pointed out, “I was just a child and he was a grown man knowing exactly what he was doing was wrong”.

9. I make two observations about that victim impact statement. The first is that the victim is correct in saying that she was just a child and he was a grown man. True it is, as Ms Nash who appears for Mr Sayhoun argues, the age difference is six and a half years between thirteen and twenty. But as Ms Roberts points out and I accept, there is a large difference in maturity between a thirteen year old school girl and a twenty year old university student. For the following four and a half of those six and a half years, the complainant will still be a child, whereas the offender Mr Sayhoun had been an adult already for over two years.

10. The second aspect of the victim impact statement is the description of the impact on the victim. It has been severe. This is why this sort of activity is made into a crime. I do not know how long she will experience the effects of the crime committed against her. It may be for the rest of her life, although there is no evidence to support that. Hopefully, it will be for a far lesser period. But it has obviously thrown her off course since it has occurred and has had a seriously unfavourable impact on her life.

11. Mr Sayhoun is very well regarded by those who write on his behalf. He is regarded as a very good employee and was an excellent and highly regarded school student. He is well respected amongst his work colleagues. The offence was clearly out of character. Ms Nash called both her client and her client’s sister. What was immediately obvious from her client’s evidence was the remorse shown by him.

12. The law about remorse has changed in recent times. It is harder for courts to accept remorse. It can only be taken into account in sentencing, nowadays, if the offender has provided evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by his actions. I find it unusual that such evidence is actually presented in cases before me. This is an exception.

13. Mr Sayhoun in his evidence before me genuinely accepted responsibility for what he did and is clearly well aware of the injury and damage which he has caused to his former friend. The impact includes, as he says, depression and shame and a significant loss of self confidence. His sister describes a very supportive and loving brother. He clearly comes from a strong and very highly regarded family, who have high moral and religious standards.

14. Their mother died when Mr Sayhoun was only twelve years old and a lot of his upbringing was undertaken by his older sisters, including Anita Sayhoun, who gave evidence today. She spoke highly of him. His plans for the future will be supported by his family. He is in fact living with Anita Sayhoun at the moment. She trusts him completely with her children. He has just finished his university education.

15. There is a pre-sentence report which has been prepared by the Probation and Parole Service. It confirms that he has accepted full responsibility for his actions and displayed insight into the injury which has occurred. It regards him as suitable for a medium to low level of intervention and supervision would include strategies to address sex offending behaviour. It would focus on referral to the Department of Corrective Services’ Forensic Psychology Services and monitor participation in sex offence specific intervention. He is suitable for a Community Service Order but the work is not available. He is ineligible for a Periodic Detention Order.

16. Ms Nash in her very helpful written submissions suggests that a suspended sentence is in order. Ms Roberts in her equally helpful oral submissions agrees that such a proposal would not involve appellable error. She does however point out the objective seriousness of the crime and that it should attract a custodial sentence.

17. I agree with that submission and the submission which is clearly implicit in what Ms Nash has to say: having considered all the possible alternatives I regard a sentence of imprisonment as the only one that is appropriate but I propose to suspend that sentence of imprisonment.

18. Although it is a very serious crime, there was, I accept as Ms Nash argues, no level of humiliation, force or violence inflicted upon the victim. Although marginally relevant, that also includes the fact that the offence did not occur without the consent of the victim.

19. The age difference, as I say, is not as significant as Ms Nash argues, in my opinion. It would be worse if the offender was older than he was but nevertheless there was a significant difference in their levels of maturity.

20. I also take into account as mitigating factors, that Mr Sahyoun does not have any criminal record and that he was a person of good character. He is in my opinion unlikely to re-offend and has good prospects of rehabilitation. As I have already said, he has given strong evidence of remorse.

21. In addition to that he has pleaded guilty. He has pleaded guilty at the earliest available opportunity and I propose to extend to him the maximum benefit for that plea of guilty. I overlooked mentioning that part of the evidence tendered by Ms Nash was a report from a consultant psychologist, Mr Watson-Munro. A good summary of his views is that the prognosis is what he describes as “very positive and that it is highly improbable that this man will be seen before the court again.” He recommends professional assistance. Mr Sahyoun said that he had received more support than he expected from his consultations with Mr Watson-Munro.

22. I would regard an appropriate penalty, taking into account the objective seriousness of this case, as one of three years imprisonment. Because Mr Sahyoun has pleaded guilty at the earliest available opportunity I will reduce that by one quarter, that is by nine months to twenty seven months imprisonment. Because of the various subjective matters, which I have referred to, I regard a penalty of two years imprisonment as appropriate. Would you stand up please Mr Sahyoun.

23. I sentence you to imprisonment for two years and I make an order suspending the execution of the whole of the sentence for the whole of the two years and directing that you be released from custody on condition that you enter into a good behaviour bond for two years. The conditions of the good behaviour bond will be these:

1 That you remain of good behaviour.

2 That you notify the Registrar of this court of any change in your residential address.

3 That you attend court if called upon to do so.

4 That you accept supervision from the New South Wales Probation and Parole Service and accept all their reasonable recommendations and directions so far as addressing sex offending behaviour including any referral to the Corrective Services Forensic Psychology Services and participation in sex offence specific intervention programmes.

5 For the purposes of arranging supervision you should report to the office of the Probation and Parole Service at Fairfield on or before 12 January 2009.

HIS HONOUR: Now I am in a moment going to discharge my statutory responsibility of explaining that sentence to Mr Sahyoun but Ms Roberts and Ms Nash, are there any aspects of the sentence which I have overlooked or need to correct or add to.

ROBERTS: Your Honour Ms Havryliv has just pointed out to me that she was wondering whether you needed to set a minimum period - it was my understanding that you didn’t.

HIS HONOUR: No, not any more.

ROBERTS: No.

HIS HONOUR: Used to be.

ROBERTS: Yes your Honour, I thought - you don’t set a non-parole period.

HIS HONOUR: If it is breached that’s when I set it.

ROBERTS: That’s when it happens, yes your Honour. That’s my understanding.

HIS HONOUR: I agree. In a moment I've got to deal with this motion but we will deal with that separately so Ms Roberts, anything about the sentence?

ROBERTS: No your Honour.

HIS HONOUR: Ms Nash?

NASH: No your Honour I just don’t know whether your Honour will be setting an expiry date after that.

HIS HONOUR: I do for the bond but not for the sentence.

NASH: Yes. Thank you your Honour.

24. All right, Mr Sahyoun, two things are obvious about this case. One is, you have engaged in a very serious crime, very serious. You violated a thirteen year old girl when you were a twenty year old adult male. The second thing that it is obvious to me that you realise fully what you have done. That is unusual in cases such as this and it seems to me that your prospects in the future are very good. You have got very strong family support and you have got some insight into just what you have done so those two things come together for me and I have decided to accept Ms Nash’s arguments. The crime is so serious that I have imposed a sentence of imprisonment but on the other hand because of your attitude and other factors, I have suspended that sentence so you have a sentence of two years imprisonment. That sentence has been suspended on condition that you enter into a bond and that is like a promise that you make to the court. You will be taken to the registry to fill it out. There are four conditions, I think four, of that bond which you will see. One is that you are of good behaviour. That means you have got to stay out of trouble. I do not think that will be a problem for you but it is really important that you stay out of trouble. Two, if you change your residential address you have got to write a letter to the Registrar of this court and tell them. Three, if you get a notice saying you have got to come back to court, probably before me, then you have got to turn up. We do not want to be sending the police out to arrest you. The fourth is probably the most important and that is that you are going to be supervised by the Probation and Parole Service, by the people who prepared the report for you. They are going to give you advice about what will help you in dealing with what it was that brought about this offence. They are experienced in that sort of help. I think you will respond to that because you have responded to Mr Watson-Munro’s help already so I think you will find it is very helpful.

25. The bond lasts two years. It will date from today and I should say that as part of my formal order, the bond will date from today and expire on 18 December 2010.

26. What is the most important thing about this sentence is this. What are called good behaviour bonds are commonly understood as you breach the bond, you come back and the court says well look, you should not do it again and we will let you off again. But a good behaviour bond which is attached to a suspended sentence is quite different. If you breach a good behaviour bond attached to a suspended sentence, you come back to court and it is very hard to stay out of gaol. The law in this State is against a person who breaches a good behaviour bond when it is attached to a suspended sentence because the law says, you have been sentenced, you have got a gaol sentence but because of a special case it is suspended and if you breach that the law says it has got to be a very exceptional case that you do not go to gaol so that is why it is very important that you stay out of trouble. Do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: Yes I expect you do and I expect that you will sort your life out from here on and by the looks of it you will have a long and productive life with a very supportive family so good luck.

Is there anything else?

ROBERTS: Thank you very much your Honour.

NASH: Just the forfeiture order your Honour.

HIS HONOUR: Yes. All right have a seat Mr Sahyoun. You are about to lose your car by the looks of it. So you are asking for an order under the Confiscation of Proceeds of Crimes Act 1989.

ROBERTS: Yes your Honour. The application is made under s 13 but the order is made under 18.

HIS HONOUR: Order is under 18 yes and Ms Nash is that opposed?

NASH: No your Honour, it is not opposed except would your Honour allow the order not to be executed before the 22nd December which will be--

HIS HONOUR: Before when?

NASH: The 22nd December. We have discussed that with Ms Roberts.

HIS HONOUR: So I delete ‘forthwith’.

ROBERTS: Yes your Honour.

HIS HONOUR: ‘Not before 22/12/08’.

NASH: At the close of business on that day.

HIS HONOUR: All right I will say not before 23/12/08.

NASH: Thank you your Honour.

ROBERTS: So that should be - that notation or the change your Honour should be made on both the short minutes of the forfeiture order and the forfeiture order itself.

NASH: That is correct.

ROBERTS: And I think your Honour has a number of copies of those because you have to provide three copies to the Registrar.

HIS HONOUR: I am just signing everything in sight here Ms Roberts.

ROBERTS: Thank you your Honour.

HIS HONOUR: I think I have got that right, all right, I have signed those, made those orders. Anything else Ms Roberts, Ms Nash?

ROBERTS: No your Honour.

NASH: No thank you your Honour.

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