R v Khouri - [2024] NSWDC 581

District Court

New South Wales

Medium Neutral Citation: R v Khouri [2024] NSWDC 581
Hearing dates: 22 March 2024
Date of orders: 4 April 2024
Decision date: 04 April 2024
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
1. Offender is convicted.
2. Offender sentenced to a term of imprisonment of 6 years with a NPP of 3 years.

Catchwords:
CRIME – sentence – s61I Crimes Act – maximum penalty 14 years imprisonment – 10 day jury trial – aggravated sexual intercourse without consent – serious physical disability – found guilty of statutory alternative
OFFENCE – historical sexual offence – 1998 – victim from New Zealand – lived in Australia for 3 months – walking home in the afternoon – pulled into car by offender – victim and offender strangers – victim froze – offender dragged victim to a bush and pinned her to ground – penile vaginal sexual intercourse for less than 10 minutes – ejaculated inside her – offender ran to parked car and drove off – no positive case mounted on offender’s behalf
COMPLAINT – victim immediately attended Auburn Hospital on foot – SAIK completed – semen and sperm present – no match at the time – victim never made formal police statement before returning to New Zealand – offender gave buccal sample to police for an unrelated matter in October 2020 – DNA matched swab taken in November 1998
OBJECTIVE SERIOUSNESS – slightly above middle range – brazen and spontaneous – minor and transient injuries – victim born without left hand and part of forearm – reject Crown submission that offending aggravated by victim’s physical injury – victim gave evidence that she lived life to the full despite her disability – impressive witness who did not seek to embellish – did not accept she was a vulnerable witness
SUBJECTIVE CASE – now 45 – married for 19 years with 5 children – constant work history – no criminal convictions at the time – subsequent offending including animal cruelty offences – acknowledged victim’s trauma – depression and post-traumatic stress symptoms following incarceration – concerned about his family
SENTENCE – rehabilitation – general deterrence – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW): ss 61I, 61J
Crimes (High Risk Offenders) Act 2006 (NSW): s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 21B, 47
Prevention of Cruelty to Animals Act 1979 (NSW)

Cases Cited:
R v Coleman [2019] NSWDC 285

Category: Sentence
Parties: Rex (Crown)
Rizik Khouri (Offender)
Representation:
Counsel:
M Franklin (Crown)
B Clark (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Tsolakis Solicitors (Offender)

File Number(s): 2021/00346079
Publication restriction: There is to be no publication of any details that might identify or tend to identify the victim.

Judgment

The offender, Rizik Khouri is before the Court for sentence on one charge contrary to s 61I of the Crimes Act 1900 (NSW), namely that on 26 November 1998 at Lidcombe or Auburn, he had sexual intercourse with the named victim, without her consent, knowing that she was not consenting.
The offender faced a jury trial for the aggravated version of this offence contrary to s 61J(1), namely that he committed the offence in circumstances of aggravation being that the victim had a serious physical disability. The jury was directed in relation to the meaning of a serious physical disability and the availability of the s 61I offence as a statutory alternative. They found the accused not guilty of the aggravated offence and guilty of the alternative offence on 11 October 2023, after a 10-day trial, and his bail was revoked from that date. He had not served any time in custody after his arrest until then and has thus been in custody, bail refused, since that date. His sentence will be backdated to that date to take his pre-sentence custody pursuant to s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
This offence occurred 25 years ago and thus falls within the general description of an historical sexual offence. The maximum penalty for this offence contrary to s 61I then in force is 14 years imprisonment and that, in fact, remains the maximum penalty for offences contrary to this section in the current iteration of the Crimes Act. Whilst there is now a standard non-parole period of 7 years attaching to this offence, that was not the case for offences committed in 1998. Pursuant to s 21B of the Crimes (Sentencing Procedure) Act, whilst the offender is to be sentenced in accordance with current sentencing patterns and practices, the maximum penalty and any standard non-parole period to be applied and considered are those which were applicable at the time the offence was committed.
I turn to assess the objective seriousness of the offending. The jury’s rejection of the circumstance of aggravation, namely the presence of a serious physical disability, had no bearing on any assessment of the victim’s credibility as a witness. It was a simple matter of fact. The victim was born without a left hand and part of her left forearm and at the time of offending did not use any prosthesis. The jury’s finding of not guilty of the aggravated version of the offence amounted to no more than a finding that, in the circumstances of this victim, that did not amount to a serious physical disability. Their conviction of the accused of the alternative count, however, can only have been because they accepted the evidence of the complainant as the truth beyond reasonable doubt.
The offender’s case would appear to have been to put the Crown to proof, and there was no positive case mounted on his behalf. He did not engage in a record of interview following his arrest and neither did he call or give evidence at trial.
I accept that the facts relevant for sentence are founded largely on the basis of the victim’s evidence. She was 23 at the time, a New Zealander who had moved to Sydney about three months before the offending. She had some relatives living in Sydney at the time. As previously stated, she was born without a left hand and part of her left forearm. She had been working as a cleaner on Thursday, 26 November 1998 and stopped in at the Lidcombe Hotel on her way home for a couple of drinks, as I recall her evidence because it was hot. She left before dark and was walking home in the afternoon past the railway station. When she reached the first set of lights, a car approached her. The offender was in the car in the passenger seat. Someone else was driving. He got out and, in the words of the victim, scooped her around the waist and pulled her into the car. He did not say anything.
She said that he used force to pull her into the car but on re-reading the transcript and on my recollection of her evidence, did not suggest that this was any force other than that required to scoop her around the waist and pull her into the car, into the backseat of the car, where he sat alongside her initially.
She was, not surprisingly, shocked, scared and frightened and said that she froze from then until the conclusion of the offending. She had never previously seen the offender nor the driver of the car, who she described as a woman and the evidence is that both the offender, and whoever was the driver of the car, were both strangers to her.
The offender then climbed into the front seat of the car, and she was driven to a nearby park, more probably than not Dudley Park Reserve. The offender grabbed her out of the car by the hand and walked her through the park. The driver then took the car and parked it further up the road not visible from the park.
The offender dragged her to a bush and started kissing her, first on the lips and then on her chest, before forcing her to the ground and used his body weight on top of her to pin her to the ground. She struggled to try and get up, but the offender was lying on her right side and because she did not have a left hand, she could not use her left hand or forearm to push herself up and struggle away.
He pulled down her trousers and underpants in one motion to around her knees, which were pushed back against her chest area. He then inserted his penis into her vagina. He was not wearing a condom. He had penile vaginal intercourse with her in this position for less than 10 minutes and ejaculated inside her.
He got off her and then ran to the side of the park in the direction of the parked car. The victim pulled up her clothing and ran in that direction and heard the driver of the car yelling at him to hurry up. The offender then got into the car which had already started to move and was driven away.
The victim went straight to Auburn Hospital on foot. She had an initial examination by nursing staff and then a Sexual Assault Investigation Kit (SAIK) was completed including taking vaginal swabs from her. She told those examining her that she had been raped.
There was redness observed on her neck and some red marks on her right inner thigh as well as some scratch marks to her left breast and upper arm but there is no further evidence as to how they occurred nor any evidence that they could be described as anything more than minor or perhaps even transient marks. She was noted to be in a very distressed condition when seen at the hospital.
Testing of the high vaginal swabs indicated the presence of semen and sperm which produced DNA. 22 years later, the offender gave a buccal sample to police for an unrelated matter which never proceed to charges. In October 2020, his DNA was matched to the high vaginal swab taken from the victim at Auburn Hospital on 26 November 1998 and later testing showed the same matches from the low vaginal and vulval swabs and the victim’s underwear. He was subsequently arrested and granted bail until his conviction after trial.
The victim never made a formal statement to police at the time of offending. Police saw her at Auburn Hospital on the evening of 26 November 1998 and thereafter tried once or twice to obtain a formal statement from her. I accept from the evidence, however, that she was very distressed and, from the evidence given by the police, that she did not at the time feel ready to give them a statement.
She in fact decided to go home to New Zealand, to her mother, which she did about two to three weeks afterwards without the police ever being able to take formal statement from her. They did undertake some initial investigation after seeing the complainant at Auburn Hospital and were able to identify the park where the offence is likely to have occurred, but there was no evidence from which they could identify the offender of this sexual assault and of course, as at 1998, not the preponderance of CCTV cameras that would more likely than not be present today from which any further investigation could be undertaken.
Further, the offender at the time himself was 20 and had no prior convictions so even though DNA results were found from the forensic testing undertaken of the complainant, there could be no matching results obtained at the time. As I have said, this match did not occur until 22 years later in October 2020.
After the match was made, the victim was subsequently interviewed in New Zealand where she had continued to live since her return and she made statements to police. Her memory of many of the details surrounding the offending was affected because of the passage of time but her essential allegation was the same as the complaint she made to Auburn Hospital on the night of the offending and to police who saw her there.
Based on these facts, I accept that the offending is at least around the middle of the range in terms of objective seriousness for offences of sexual intercourse without consent, and probably a little above. In fact, it is not necessary to conduct any such exercise because there is no standard non-parole period, but it has always been necessary for sentencing courts to determine the factual seriousness of any offending as one factor to be taken into account when determining the overall relevant sentence.
This offence of sexual intercourse without consent involved a man of 20, pulling a young woman who was 23 and a stranger, off a main street, in the afternoon, in daylight and taking her to a park where he had forced penile vaginal sexual intercourse with her, not using a condom and in circumstances where he ejaculated. This occurred in a public park and although somewhat out of view was nonetheless brazen.
The offence would appear to have lasted for a relatively short period. There is no evidence however that could be described as amounting to planning and the offending has the hallmarks of being brazen and spontaneous. The offender had actual knowledge that the victim was not consenting. A level of force in addition to that which is inherent in all sexual assaults was largely confined to the complainant’s being pinned down by the offender using his body weight while lying on top of her. The injuries observed in hospital were minor and transient, in fact, not actually seen or able to be seen by the police officer who saw her later that night at the hospital.
The Crown has argued that the objective seriousness of this offending is aggravated by the fact that the victim was vulnerable and suffering from a physical disability. As to the latter, it is the case that the jury did not accept that her disability amounted to a serious physical disability. The victim, however, gave evidence about herself and the impact that this disability had had on her life generally. She was, on my finding, an impressive witness who did not seek to embellish and, if anything, downplayed this offending perhaps to an extent because the passage of time meant she could not remember details.
She gave evidence that she had always tried to live her life to the full despite her physical disability which included playing competitive netball in Sydney at the time of this offending and working in at least one and as I recall the evidence perhaps even two jobs. It is hardly surprising therefore that the jury was not satisfied that her obvious physical disability did not amount to a serious physical disability and with respect, it is surprising to me now, as it was at the time this indictment was presented, that the Crown pursued that circumstance of aggravation. It is of course the case that she did suffer from a physical disability and that had a little part to play in the offending to the extent that although she tried, she was not able to get away because she could not put any weight on her left hand.
However, I do not accept that it is correct to view her as vulnerable to the extent that this would aggravate the objective seriousness of the offending. Her disability did not make her vulnerable to attack. She was walking along the street to her home in daylight on the footpath. There was no evidence that her disability prevented her from being scooped into the car because her evidence was that she was taken by complete surprise and completely shocked and frozen at what happened.
Even if these preliminary activities are not to be viewed as part of the offending itself, nonetheless the fact that she could not put weight on her left hand, whilst playing some part in the fact that the offence was able to be committed, I do not accept was of such significance that it should be seen as aggravating the objective seriousness.
Her evidence equally was that the offender’s size on top of her was that which was pinning her down, albeit on her right side, and that at least was a significant reason that she was not able to resist and which he used to enable him to commit the offence. I do not accept that she is to be regarded as a vulnerable witness as that is provided for in s 21A of the Crimes (Sentencing Procedure) Act.
The Crown also argued in written submissions, which may well have been to an extent abandoned in oral submissions, that I would regard the emotional harm to the victim as substantial to an extent that it would aggravate the objective seriousness.
I have read the victim impact statement and taken it into account and also have been referred to portions of her evidence. The victim gave evidence in a calm and dignified manner. At the time, I accept she did not want to get police involved because in her own words, she felt dirty and ashamed, although there is of course absolutely no reason for her ever to have felt that way. She just wanted to get away to go back home and try and leave it all behind her. I accept she has never been able to completely forget about it, although she has tried, and many of the memories returned when the police came to see her about three years ago in New Zealand.
In the last sentence of her victim impact statement, she said this, “I had to find my own way to forgiveness so that I had peace.” This statement exemplifies the woman who I observed giving evidence, namely a woman of grace and dignity. There has been emotional harm to her which to an extent is ongoing, which is regrettably the experience of the Court in relation to all victims of sexual assault. It is not evidence, however, in my view of the magnitude which could be described as substantial and therefore a factor which would aggravate the objective seriousness of the offending.
It is on the basis of this combination of findings that I accept that the objective seriousness of this offending places it at around the middle or a little above the middle for the range of offences capable of falling within the definition of sexual intercourse without consent, albeit not at the top of any such range. The offender does not get any discount for a plea of guilty, this matter having gone to trial.
There are a number of matters that the Court must consider pursuant to s 3A of the Crimes (Sentencing Procedure) Act in order to determine the appropriate sentence for any matter and also in order to determine whether or not any particular sentence crosses the threshold for imprisonment pursuant to s 5 of the Act. A number of those factors are present here, but even the objective seriousness of itself in my view would mean that this offending crosses the threshold. The contrary has not been argued on behalf of the offender.
Because the legislature has determined there is no alternative to full time imprisonment where that threshold has been crossed, it is necessary for the sentence here to be a term of imprisonment to be served full-time.
One of the factors the Court must take into account pursuant to s 3A of the Crimes (Sentencing Procedure) Act and a factor which the Courts have always taken into account when sentencing for all criminal offences, is the need for general deterrence to be reflected in the appropriate sentence. That is so in all cases particularly so in relation to sexual offending. All sexual offending is serious. It is the experience of the Courts that victims of sexual often carry the scars of that offending with them for the whole of their lives and it is for that reason that any sentence for such offences must carry an element to send a message to the community generally that all sexual offending, even that which was committed 25 years ago, will lead to serious outcomes and more often than not in cases brought pursuant to this section will lead to periods of full-time custody.
I now turn to the subjective case on behalf of the offender. He is now aged 45, has been married for about 19 years and has five children aged between eight and 16. He has had a constant work history as an adult. He did not have any criminal convictions at the time he committed this offence, and he is entitled to have that taken into account as a mitigating factor pursuant to s 21A(3)(e) which refers to the existence of previous conditions, that is convictions for criminal offences prior to the offending the subject of the sentence.
He is not, however, entitled to have his sentence mitigated on the basis that he is to be regarded as a person of good character that is as at today, the day of sentencing. That is because he has subsequent convictions for offences committed after 1998. They are not lengthy and not in relation to offending against people.

He was convicted and ultimately sentenced in 2003 for an offence committed in June 2002 for destroying or damaging property and knowingly driving a vehicle in a menacing manner. The COPS entry for that matter is tendered. The matter would appear to have gone to hearing and subsequently to this Court by way of conviction appeal. There is nothing from which I can determine whether or not that which is in the COPS entry was the evidence that was presented to the Court or for that matter the basis on which a finding of guilt was made. Nonetheless, he was convicted of those two offences and dealt with by way of a fine for both offences and a disqualification period for the driving matter.
In 2004, he was convicted for a further driving matter which is of a relatively minor nature, committed in August 2003, as well as an offence of resisting a police officer. These were also dealt with by way of a fine.
In 2004, he was convicted of an offence which occurred in December 2003 of common assault, ultimately dealt with after conviction appeal it would appear, by way of a s 9 bond. The facts of that matter are also before the Court.
There is nothing otherwise before me on his criminal record at all, but I am aware, however, because of other material tendered, that there were other charges laid against him and, it would appear also involving his wife, but it is unclear whether there were charges against his wife, but nonetheless subsequent offending in 2017 to 2018 contrary to the Prevention of Cruelty to Animals Act 1979 (NSW). He was prosecuted by the RSPCA and the facts sheet produced by the RSPCA is tendered.
This prosecution related to a number of animals belonging to the offender and his partner, who I understand to be his wife. They were alpacas, domestic goats, sheep and a cow. He was charged with a number of offences and the submissions indicate that he was convicted of a number of animal cruelty offences and, I am told in submissions, dealt with by way of a Community Corrections Order. I do not know from the material before me whether or not he was convicted of all of the offences for which the fact sheet indicates charges were laid, and if not, on which ones he was convicted. I do not know the basis on which the convictions were made and the basis on which the sentence was given.
The offending would appear to involve offences involving the neglect, albeit in some cases the gross neglect, of these animals as opposed to some positive physical acts of cruelty or violence against them. Nonetheless, they are matters that will probably end up on his criminal record at some stage albeit that they are not there at present, and they occurred in 2017 to 2018.
The subsequent Crimes Act offences disentitle him to be regarded as a person of good character, albeit that he is a person who is entitled to have his sentence mitigated on the basis that he had no previous criminal convictions at the time of offending. The RSPCA offences also do not assist him on a finding of good character. Significant however in terms of assessing the appropriate sentence and in particular any risk of reoffending is that he has no other history of sexual offending, none beforehand and none subsequently.
The Crown has argued as I understand it that his lack of previous convictions should be afforded less weight because he has gone on to commit offences of violence against women in public places. The facts of the first and third offences are before the Court. It is the case that the victim of the road range offence was a woman but there is nothing to indicate that she was targeted because she was a woman or anything other than that this was a coincidence.
The victim of the third offence, that of common assault, was indeed also a woman, a person with whom it would appear he was in a domestic relationship at the time, which of course would elevate the objective seriousness of that individual offence, but places it in a different category to the offending before me, namely the act of sexual violence towards women in a public place.
In my view, these offences and the subsequent offences of animal cruelty mean that he is not entitled to be regarded as a person of good character. This, however, does not aggravate his offending nor mean that his appropriate sentence should be increased in any way. It merely means that this particular circumstance of mitigation is not available to him.
Further, in terms of assessing in whichever way this is meant to be applied, the fact that two of the criminal offences on his record were offences against women, it is the case that the last of them occurred in December 2003, more than 20 years ago, when he was much younger and more volatile and there have been no similar offences since.
The offender since has twice been seen by Dr Allnutt, psychiatrist. He was first seen on 6 November 2023. Initially, he told Dr Allnutt he had no memory at all of the offence and continued to deny having committed it. His major concern during this and in fact his subsequent consultation would appear to have been for his family and particularly for his wife, who was trying to keep his business going, and for his children.
Dr Allnutt saw him again on 13 December 2023 and on that occasion, the offender started to demonstrate something, which on my finding comes close to remorse, albeit that he does not completely admit having committed the offence. He told Dr Allnutt that he had originally been in denial but was starting to think about what had happened. He said that at around the time of offending, he was drinking heavily and using cocaine. He did not actually admit the offending, and to some extent I accept minimised his offending, but of significance told Dr Allnutt that he acknowledged the victim’s trauma and said:

“I cannot believe I put her through this, her family and my family. Oh god, I am ashamed, I am terribly sorry to her and her family.”

Whilst this of course falls short of an admission to having committed the offence, and in fact he is to be sentenced on the basis that he pleaded not guilty and was found guilty, in fact I accept that these answers demonstrate at least some insight into the impact on the victim of what occurred and comes close to amounting to an apology. He also told Dr Allnutt that he accepted the findings of the jury.
I accept on the basis of the history given to Dr Allnutt that the offender stopped drinking alcohol and using substances in 2003, which appears to coincide with the last of his criminal offending against people. I accept from the history given that he comes from a family of six of which he is the eldest child. He had a loving and the supportive family. He was not exposed to violence or abuse, he left school and did as trade as a tiler and initially he worked in that field but has been in his own business in the area of entertainment for the last 16 years.
I accept Dr Allnutt’s opinion that he has the intellectual capacity to engage in appropriate treatment and to benefit from appropriate supervision in due course. I accept that the absence of any sexual offending recidivism bodes well for his rehabilitation. There is nothing from which I could, or do, make any finding that he presents any risk of further sexual offending and because the most recent episode of any violence towards any person was in December 2003 and since then, he has given up alcohol and other substances, I do not accept that he presents as any risk to the community in relation to offences of violence and particularly to offences of violence against women either in public places or otherwise.
He is diagnosed by Dr Allnutt as suffering from a constellation of depressive and post-traumatic stress symptoms, both of which I understand to be connected to the fact that he has been incarcerated since October 2023. The fear that comes with incarceration and the level of concern he has for his family whilst he remains in prison, I take into account and accept Dr Allnutt’s opinion in relation to his current psychiatric state. There is no evidence that he was suffering from any form of psychiatric or mental disorder at the time he committed the offending.
The offender is much concerned with the impact of his incarceration on his wife and children. His wife has been trying to keep his business running since he was bail refused and I accept this is having some negative impact on her and that that is increased and certainly not assisted by the fact that she now has the sole care of their five children who are still relatively young. There has already been an adverse impact on the offender’s family because of his incarceration and that will continue because of his ongoing incarceration. It is not of the exceptional type however that would impact on the inevitability of ongoing incarceration.
I accept, however, that his current depressive symptoms are to at least some extent connected with his concern about his family and that he will likely suffer his period of imprisonment more onerously than others because of the ongoing concern he has about the welfare of his children and wife, which has already impacted in his demonstrated depressive symptoms and post-traumatic stress disorder.
He has expressed suicidal ideation to Dr Allnutt but fortunately has not indicated any real plan to carry this through. He has demonstrated symptoms of post-traumatic stress disorder including hyperarousal, as a result of being in the prison system, which is confronting for him. This will likely continue during the length of his non-parole period. This is the first time he has ever been in custody.
There are two character references before the Court which I have read and taken into account. Those two referees have come to know the offender and his family well over a lengthy period. I accept their observations of him, which of course are to an extent limited because they do not cover the period at which he committed this offence. I accept, however, that their observations of him are largely consistent with what can be inferred from the lack of violent offending against people since 2003. He has been a volunteer and given his time for charitable works and commitment to good causes, and I accept he has sponsored numerous events connected with breast cancer research and juvenile justice and a number of church related events.
It would certainly appear to be the case that since marrying about 19 years ago, his life took a considerable turn for the better and with the regrettable exception of the animal cruelty matters has been amongst the reasons why he has been able to turn his life around and come to the Court as a person who has largely rehabilitated his life. I accept that he has done so and that he has demonstrated real prospects of rehabilitation since at least the end of 2003. I do not ignore or dismiss the animal cruelty matters when making that statement, but it seems to me they are of a different type to both the offence before me and the matters that were otherwise on his criminal record.
There has been a delay in the sentence for this offence, 25 years after it occurred. The delay has largely been as a result of the offender not coming forward, a matter which the Crown has referred to in its written submissions, but it is a matter of fact that he comes to be sentenced 25 years after the offence in circumstances where the offence can be described as stale. The fact that this is largely because he did not come forward and volunteer to having committed the offence does not change the fact that he is sentenced for an offence committed 25 years ago.
The authorities make it clear that delay in criminal proceedings can be taken into account in two ways. One is if the offender has had this offending hanging over his head for a considerable period of time. That is not a relevant consideration in this matter. As I have said, the offender until very recently has completely denied committing the offence or any knowledge of it.
The second way in which delay can be taken into account however I accept is in circumstances where the offender has demonstrated rehabilitation in the ensuing period.
One of the matters that has been the subject matter of submissions in this sentence is the extent to which it can be said that the offender has demonstrated rehabilitation in the intervening period, given that he has some other matters on his criminal record including those RSPCA matters committed as recently as 2018.
Further, the Crown has argued that demonstrated rehabilitation is more likely to be favourably viewed in circumstances where an offender has recognised his offending behaviour and come forward and undertaken treatment shortly afterwards and thereafter led a blame-free life. That is not the case here.
However, as I think I have said now twice if not more, he has not committed any offences of violence against people, women or otherwise, since December 2003 and would appear to have demonstrated real rehabilitation since then. He has not committed any sexual offending nor at least on the criminal record before me behaved in a way that would give rise to a need for treatment for sexual offending so as to protect the community. He has largely demonstrated rehabilitation. He has not led a blameless life but he has demonstrated rehabilitation and this has an impact on the appropriate sentence.
He will need professional assistance, however, once he is released to parole to deal with his depression and other psychiatric conditions particularly post-traumatic stress disorder and on my finding, will need that for a slightly longer time than might otherwise be appropriate especially as he will need to be integrated back into his family and business. At the same time as dealing with the ongoing depression and post-traumatic stress disorder following the period of imprisonment, as I have said, this is his first period of imprisonment and I take those factors into account on a finding of special circumstances.
An additional factor is the finding that I make that his experience of custody, giving rise as it has to his demonstrated psychiatric conditions of depression and post-traumatic stress disorder, will be somewhat more onerous than it might be for others.
I have looked at the statistics published by the Judicial Commission for sentences for this offence relevant for the period before a standard non-parole period was applicable. There would appear to be two only, which is of course a small and not a particularly useful sample. However even for these, the raw statistics for one of them, belie the actual facts. Those two cases would appear to have given rise to an overall term of imprisonment in one case reported as R v Coleman [2019] NSWDC 285 to an overall sentence of 6 years with a non-parole period of 4 years.
The other sentence does not appear to have been reported. When looked at more thoroughly, it would appear to have given rise to an overall term of imprisonment of 8 years, it transpires that that 8 year term was an aggregate term and the relevant indicative term for the s 61I offence was in fact a 5 year overall term of imprisonment. They were both offences which went to trial on pleas of not guilty.
I know little more about the offence which has not been the subject of any report but for the other offence, that of the R v Coleman, the offending would appear to have been perhaps around about the same level of objective seriousness, perhaps a little less. The offender came to Court, however, with a lengthy criminal history on one hand but on the other hand, also came to Court with the subjective case that entitled him to greater mitigation. As to the other offence which gave rise to an indicative sentence of 5 years, there is little I can do to find the basis on which that sentence was imposed.
I must sentence the offender in this, or any other case, taking into account the provisions of s 3A of the Crimes (Sentencing Procedure) Act, which require me to take into account a number of factors including that the offender is adequately punished for the offence. I have already referred to the need for general deterrence. I must take into account the need, if at all, to protect the community from the offender which seems to me is not a relevant consideration in this matter. The sentence needs to promote the rehabilitation of the offender, which in my view is likely to be better promoted in due course and as soon as possible in the community, not whilst he remains in gaol. The sentence must also make him accountable for his actions, to denounce his conduct and to recognise the harm done to the victim of the crime and to the community generally.
Taking all of those matters into account and also doing the best I can to ensure proportionality between the sentence and the offending, I have come to the conclusion that the appropriate sentence for this offence is one of 6 years. On the finding of special circumstances, I will be imposing a non-parole period of 3 years, both of which will commence on 11 October 2023 the date on which he went into custody. For those reasons and I make the following formal orders:
The offender is convicted. He is sentenced to a non-parole period of 3 years commencing on 11 October 2023, expiring on 10 October 2026, with parole thereafter of 3 years commencing 11 October 2026 expiring 10 October 2029, giving rise to an overall term of imprisonment of 6 years commencing 11 October 2023 expiring 10 October 2029.
The offender’s conviction for this offence brings him within the provisions of the Crimes (High Risk Offenders) Act 2006. Section 25C of that Act requires me to advise him about the existence of this Act and the application of his offence to that Act. Without going through chapter and verse the provisions of that Act, it seems to me that perhaps the most significant implication is that in an appropriate case, the authorities namely the DPP as I understand it, can apply to the Supreme Court as I understand it, for an extended supervision order which would mean that the sentence could if that application were successful, the sentence could be extended beyond the 6 years which I have imposed.
It would be up to the Parole board to determine whether or not the offender is released to parole at the expiration of the non-parole period I have set, but in certain circumstances, the DPP can apply for extended supervision orders. Frankly I am not familiar with the circumstances in which such applications are likely to be made. What little I know of them would seem to suggest that this case at least as it presently stands is unlikely to fall within that definition but whether or not it does, it is not clear. I have, however, advised the offender that he is subject to the provisions of that Act and whether or not any such application is ever made is not a matter over which I have any control. I do not think I am doing any better than that, Mr Clark.
CLARK: That’s fine. Thank you.
HER HONOUR: Yes.
CLARK: I’m content with that. Thank you, your Honour.

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Decision last updated: 10 December 2024

Medium Neutral Citation:	R v Khouri [2024] NSWDC 581
Hearing dates:	22 March 2024
Date of orders:	4 April 2024
Decision date:	04 April 2024
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	1. Offender is convicted. 2. Offender sentenced to a term of imprisonment of 6 years with a NPP of 3 years.
Catchwords:	CRIME – sentence – s61I Crimes Act – maximum penalty 14 years imprisonment – 10 day jury trial – aggravated sexual intercourse without consent – serious physical disability – found guilty of statutory alternative OFFENCE – historical sexual offence – 1998 – victim from New Zealand – lived in Australia for 3 months – walking home in the afternoon – pulled into car by offender – victim and offender strangers – victim froze – offender dragged victim to a bush and pinned her to ground – penile vaginal sexual intercourse for less than 10 minutes – ejaculated inside her – offender ran to parked car and drove off – no positive case mounted on offender’s behalf COMPLAINT – victim immediately attended Auburn Hospital on foot – SAIK completed – semen and sperm present – no match at the time – victim never made formal police statement before returning to New Zealand – offender gave buccal sample to police for an unrelated matter in October 2020 – DNA matched swab taken in November 1998 OBJECTIVE SERIOUSNESS – slightly above middle range – brazen and spontaneous – minor and transient injuries – victim born without left hand and part of forearm – reject Crown submission that offending aggravated by victim’s physical injury – victim gave evidence that she lived life to the full despite her disability – impressive witness who did not seek to embellish – did not accept she was a vulnerable witness SUBJECTIVE CASE – now 45 – married for 19 years with 5 children – constant work history – no criminal convictions at the time – subsequent offending including animal cruelty offences – acknowledged victim’s trauma – depression and post-traumatic stress symptoms following incarceration – concerned about his family SENTENCE – rehabilitation – general deterrence – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW): ss 61I, 61J Crimes (High Risk Offenders) Act 2006 (NSW): s 25C Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 21B, 47 Prevention of Cruelty to Animals Act 1979 (NSW)
Cases Cited:	R v Coleman [2019] NSWDC 285
Category:	Sentence
Parties:	Rex (Crown) Rizik Khouri (Offender)
Representation:	Counsel: M Franklin (Crown) B Clark (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Tsolakis Solicitors (Offender)
File Number(s):	2021/00346079
Publication restriction:	There is to be no publication of any details that might identify or tend to identify the victim.