R v Mansory

[2019] NSWDC 104

District Court

New South Wales

Medium Neutral Citation:	R v Mansory [2019] NSWDC 104
Hearing dates:	8 February 2019
Date of orders:	11 February 2019
Decision date:	11 February 2019
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Special circumstances found – 1st significant period in custody, need for an extended period of supervised parole to assist the offender with mental health issues and in rehabilitation within the community. Sentenced to a term of imprisonment of 4 years and 6 months comprising of a NPP of 3 years to commence on 31/7/16 and expiring on 30/7/19, and a balance of term of 1 year and 6 months commencing on 31/7/19 and expiring on 30/1/21. Eligible for release to parole on 30/7/19.
Catchwords:	CRIMINAL – sentence - sexual intercourse without consent – victim a 16 year old high school student –breach of bail, commission of similar offence interstates – subjective matters – mental health issues – fitness to plead – diagnosis of Bipolar Affective Disorder
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Mahbobyllah Mansory
Representation:	Counsel: Defence: Ms M Fernando   Solicitors: Crown: Ms M O’Connell Defence: Mr E Rowe
File Number(s):	2015/197816
Publication restriction:	NPO in respect of the name of the complainant or anything that might tend to identify her

Judgment

1. HIS HONOUR: Mahbobyllah Mansory appears for sentence in relation to a single offence, being an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The maximum penalty provided is 14 years' imprisonment and there is a standard non‑parole period in relation to such offences of seven years. The offender was committed for sentence on 15 December 2016 at the Central Local Court and it is accepted that he is accordingly entitled to a 25% discount for the utility of the plea alone, as referred to in Thomson and Houlton (2000) 49 NSWLR 383. Such a discount has been provided. The facts are agreed and are as follows:

2. On Saturday 4 July 2015, the victim - and I will just note that I will make a suppression order in relation to her name or evidence that might identify her - MI attended the State Library on Macquarie Street, Sydney to study for a school assignment. At the time, she was 16 years of age and in Year 11.

3. At about 3pm, she left the State Library. As she walked from the front door, she observed the offender sitting on a brick wall about ten metres from the library door. The offender at the time was 32 years of age. The offender looked up, and the victim glanced at him briefly before walking on towards the traffic lights on Hunter Street.

4. The victim stood at the traffic lights while checking her phone. The offender walked up to her and started a conversation. He introduced himself as "Max" or "Mike". He asked the victim why she had been at the library, and she replied, "Because I was doing an assignment because I'm in high school". The offender told her that he had just finished and got 96% and was studying engineering.

5. The offender hugged the victim on the right side of her body and kissed her on the right side of her face near her temple. The victim turned away from him, and as she did this, he put his right hand on her face and turned it towards him. The offender kissed the victim and put his tongue into her mouth. The victim stood still in shock.

6. The lights turned green and the victim walked across the street towards Phillip Street, followed closely by the offender. The offender walked next to the victim and continued talking to her. He told the victim he lived in Parramatta, and she said that she was on her way to get food, and he said he was too. During the course of the conversation, the offender said, "I do kickboxing. Me and my mates all do kickboxing".

7. The victim kept walking in the direction of Hungry Jack's, when the offender grabbed her arm and said, "Hungry Jack's is this way, let's go this way". They kept walking and the victim could see the sign ahead for Hungry Jack's. The offender put his arm over her shoulder, and she stopped and looked at him because she felt uncomfortable. The offender told the victim he would shout her food, but she told him not to worry.

8. They walked to Hungry Jack's, and when they arrived, the victim stepped forward to get the offender's arm off her and to order. She ordered and paid with cash for her order. The offender ordered a hot chocolate, but the machine was broken so he did not end up buying anything.

9. The victim walked towards the exit and the offender followed her. In an attempt to get away from the offender, the victim told her that she was waiting for a friend, but he told her to just give him half an hour to hang. She told him she had to go, and he agreed.

10. The victim and the offender walked in the direction of Martin Place Station. The offender put his arm around the victim and kissed her, putting his tongue again in her mouth. The victim did not know what to do, so she walked to the lights and pressed the button until the light went green to walk. She started walking and the offender came up behind her and held her hand. The victim got her phone out of her pocket, and he asked what she was doing. She told him she was just checking. The offender let go of her hand and said, "We're together now. We'll see each other for some time. Do Arabs turn you on?" The victim felt nervous and scared because of what he had told her about kickboxing. She was sweating and shaking.

SEXUAL ASSAULT - SECTION 61I

11. The offender kept talking with the victim and asked her what her hobbies were and if she smoked. The offender said, "Oi, come here", and then pulled the victim between a wall and a pillar in front of an abandoned shop on Elizabeth Street, about 15 metres from Hunter Street. The victim stumbled and the offender pulled her towards him. The offender had his back up against the wall. He kissed the victim, again putting his tongue in her mouth. She turned her head and tried to step back, but he had his right arm on her left hip and pulled her closer. The offender put his left hand underneath her clothes and stroked her stomach and then the right side of her right breast.

12. The offender moved his left hand towards the top of the victim's jeans and put his hand inside her jeans between her thighs, pushing them apart. The victim was in shock and did not know what to do. The offender put his leg between her legs and tried to spread her legs. He started rubbing the outside of her vagina over her underwear. The victim felt very scared because she knew he had the potential to hurt her.

13. The offender pulled the victim's underwear to the side and started rubbing her vagina. The offender penetrated the victim's vagina with his fingers and kept going up and down, pushing his fingers in. The victim felt a very uncomfortable tight sensation. This lasted for approximately one minute. The victim did not move because she was in shock and scared.

14. The offender removed his hand from the victim's underwear and said, "Blood". She replied, "Yeah, I'm on my period".

15. The victim walked towards Martin Place Station and the offender walked side by side with her. She turned right into Martin Place to go down the stairs and the offender tried to pull her towards him, so she went to the other side and walked down the stairs. The offender followed the victim down the stairs and walked through the tunnel towards the barrier. He asked the victim for her number and she gave him her old mobile number. The offender grabbed her arm and tried to pull her around the corner, but she told him she had to go. The offender kissed her again, putting his tongue in her mouth.

16. At about 3.45pm, CCTV footage from the Martin Place Railway Station recorded the victim walking through the ticket barrier. She walked towards the platform and then ran down the escalator. The victim got onto a train and sent text messages to her friends. She told her friends that she was scared and freaked out, and said, "I'm genuinely so scared. I'm on the train to Ashfield now, but every time someone opens the door my heart like jumps".

17. The victim travelled to Ashfield Station and called her father, DI, to pick her up. When her father arrived, the victim started to cry and told him what had happened. The victim's father took her to Ashfield Police Station. She provided a statement to police.

18. At 3.44pm and 7.08pm on 4 July 2015, call charge records show that the offender's mobile number was attempting to call the victim on her old mobile number and again on 5 July 2015 at 1.19pm.

ARREST OF OFFENDER

19. On 6 July 2015, police were making CCTV‑related inquiries at Hungry Jack's when they saw the offender talking to a staff member. They approached him, cautioned him, and arrested him before conveying him to a police station.

20. The formalities were complied with and the offender agreed to participate in a record of interview.

• He does kickboxing a couple of days a week for self‑defence.

• On Saturday, he had gone to Hungry Jack's with a female friend that he met at the State Library. He had introduced himself and started talking to her. She told him that she was going to get something to eat and walked the same way. She asked him to lead the way and they decided to go to Hungry Jack's.

• He dropped her off at the station and she gave him her number.

21. Police put the allegation to him that he had put his hand down her pants and pushed his fingers inside her vagina, and he replied, "I would not do something like that, officer".

• He does not know anything about it.

22. Police showed the offender two CCTV stills from Martin Place Railway Station, and he stated that the guy looked like him, but the two females depicted did not look familiar.

• The girl he was with was probably around 20 - 21.

• There may have been "light" physical contact between him and the girl, but he does not remember touching her. He does not recall holding her hand.

• He did not think any of the matters explained to him by police happened with the girl.

• He could not recall if he held her hand.

• He did not think he kissed her.

• He could not recall if he touched her. He did not think so, “… especially when you meet someone for the first time, because you are not going to get physical normally straight away.” He does not think so, he does not recall.

• He did hug her, but he cannot recall if he put his hand down there. But they hugged and stuff and kissed. She seemed cool about it and friendly. He may have held her hand or not, but he cannot remember.

• "We went down Hungry Jack's. We ate, we came back, and then a bit of touchy‑feely, then I dropped her home."

• "She looked happy. She smiled. She goes, 'Hey, how are you going?', and goes - she said, 'This is my number, call me', and stuff like that."

• After Hungry Jack's, he kissed her, and she put her hand on his waist. He may have put his hand down her pants. "We did something, but I don't know from, just detail, what it was from recall, yeah. I know we did something, though." He may have touched her vagina, but he could not recall. He could not remember if he put his fingers inside her vagina, but he did not think so. He may have accidentally done that.

• He vaguely remembers blood, but he ate a burger or something, and when you eat, your hands get dirty. He could not recall if there was blood.

• He did not think he had tried ringing the number she gave him. He cannot remember, but he thought he sent a message thanking her for the company.

• Police showed him the CCTV stills from the railway station, and he stated that the girl depicted could have been the girl and the male could be him, but it does not look like his haircut.

• He told the police that he was stressed at the time of the interview and that when he is stressed, he cannot think.

23. The offender was charged.

24. On 17 November 2015, the offender failed to attend the Downing Centre Local Court and a warrant was issued. He was located in South Australia and extradited to New South Wales on 5 August 2016.

25. In the intervening period between his failure to attend at the Downing Centre and his being located in South Australia, the offender committed further offences in South Australia. On 8 January 2016 when he was travelling on a Premier Stateliner bus from Mount Gambier to Adelaide, present on the bus was a 16‑year‑old male and his friend, a 15‑year‑old female. They were sitting together in a rear seat in the bus. The offender was seated in the seat adjacent across the aisle.

26. The offender struck up a conversation with the victims, asking the female if he could stay with her and sleep in her house in Adelaide. He asked how old the male was and if the male and female were brother and sister. He then provided an explanation, describing how he went about picking up girls at clubs, and held the female victim's hand without consent while doing so. When the male victim fell asleep, the offender reached across and under the victim's shorts, up to the middle of the offender's forearm, while holding a food wrapper and touched the male victim's penis, which caused him to wake up. When the male victim challenged the offender, the offender laughed.

27. The matter was reported to the bus driver and also to the police and the female victim's father. Eventually, when the bus arrived at a scheduled stop in Kingston, the offender came up to the female victim, pretended to stretch, and without her consent put both his arms around her and squeezed tightly and rubbed her back. At the next scheduled stop at Meningie, the accused placed his hand on the male victim's shoulder without consent.

28. When the bus arrived in Adelaide, police were waiting and obtained some details from the two victims, who identified the offender. He was also identified to the police by the bus driver. Police approached the offender, and as they and the offender walked away from the other passengers, the offender without warning ran away and was pursued by police. During the course of the pursuit, he threw his backpack over a wall, but was eventually apprehended.

29. He pleaded guilty in South Australia to an offence of indecently assault a person, referred to as a basic offence, and also an offence of indecent behaviour. He received in each case a sentence of three months and 14 days, commencing on 22 April 2016. The sentence expired on 4 August 2016. I note that he was on remand from 11 January 2016 to 2 August 2016, when sentenced. The sentence was to start from 8 January 2016 and expire on 21 April 2016.

30. I am not sentencing him in respect of the South Australian offences but they are relevant to refer to in these reasons and I will return to them.

31. I note in this matter that the offender at the time was approximately twice the age of the complainant, who was a young schoolgirl who had been studying at the Mitchell Library. She was entitled to feel safe in the circumstances of walking in the central business district on public streets from the Mitchell Library in daylight hours. The offender initiated contact, which included uninvited physical contact, as well as what can be reasonably regarded as acts of indecency.

32. I note that he has not been charged with the acts of indecency, which included the forceful kissing of the complainant on a number of occasions, thrusting his tongue into her mouth and touching her breast. He proceeded to continue accompanying her as she sought to leave from his presence. She was eventually accosted and sexually assaulted by way of digital penetration of the vagina in a public street, although slightly removed from clear public observation.

33. The act itself included various attempts to force her legs apart and of course an act of digital penetration said to have occurred over an approximately one‑minute period. Clearly, the conduct was not consensual and the offender in my view clearly knew that it was not. He was determined to get some sexual gratification from a young schoolgirl.

34. There is no Victim Impact Statement before the Court, although there are some references in the facts to the victim being shocked and scared. It is not difficult to understand that in the circumstances of the assault, the victim would have been terrified by what was happening and significantly concerned for her own safety should she endeavour to obtain help. In my view, it is inevitable that she will be substantially affected by the offender's conduct. Conduct such as this is now well‑recognised, even in the absence of specific evidence from victims, as causing great harm of an ongoing nature to the victim.

35. Nonetheless, there is no evidence before me which takes any likely adverse impact on the offender beyond what can reasonably be anticipated, even though what can reasonably be anticipated is very significant. I am of the view that in the circumstances, the offending conduct falls within the mid-range of objective seriousness. I note that, appropriately, so much is conceded by Ms Fernando on behalf of the offender in her written submissions.

36. As to subjective matters, there is little before the Court other than what can be gleaned from a number of psychiatric reports and letters to the Court from the offender's older brother, Carlos Mansory, and a younger sister, Nadia Mansory. The letter from Carlos Mansory is dated 4 February 2019 and the letter from Nadia Mansory is dated 7 February 2019. There are three reports from Dr S Dayalan, dated 16 November 2017, 3 September 2018, and 31 January 2019.

37. The first two of those reports were prepared by Dr Dayalan for the purposes of an assessment as to whether the offender was fit to plead. As a result of that issue having been raised, the offender was seen on 28 February 2018 by Professor Greenberg, forensic psychiatrist, for the purpose of assessing on behalf of the Crown the offender's fitness to plead. The final report of Dr Dayalan was prepared after the Notice of Motion for a fitness to plead hearing was abandoned.

38. I have read each of the reports, which are detailed, and of course in respect of Dr Dayalan, involve a significant quantity of repetition. In Dr Dayalan's first report, he found the offender unfit to plead. In his second report, he opined that he was fit to stand trial. In his report, Professor Greenberg opined that the offender was fit to plead.

39. Dr Dayalan in his first report said that the history given to him by the offender and his presentation at the time of assessment was suggestive of the offender suffering from a manic episode, as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders. He also indicated that the offender had described symptoms of PTSD that required further exploration after his manic episode remitted, when he would not be thought‑disordered.

40. In his second report, which was after the offender had been commenced on antipsychotic and mood‑stabilising medications, which he had however not complied with, it was noted that he had presented in a manic state when reviewed by a mental health nurse together with Dr Dayalan, in July 2018. Dr Dayalan then opined that the offender was suffering from Bipolar Affective Disorder with symptoms that had partially responded to treatment when he was again reviewed on 28 August 2018, on which date, although he did not present as acutely manic, there was some residual disorder in thought form and grandiose beliefs, although those beliefs were reduced in severity.

41. Professor Greenberg had the difficulty of trying to deal with making an assessment of an offender who was at times only partly cooperative in the assessment, and towards the end of the interview, overtly uncooperative. Professor Greenberg was therefore unable to make a definitive diagnosis and opined that:

"Further psychiatric assessment and collateral information is required to make a definitive diagnosis. I was, however, of the view that at this time, he displayed no evidence of any manic episode or evidence of having a major psychiatric disorder such as a bipolar disorder or a schizophrenic disorder. He was also guarded and vague with regard to his use of alcohol, which I had some concern, given his comments made to the police during his police interview on 6 July 2015 about alcohol consumption".

42. Having read each of the reports, I have some difficulty in accepting that the offender at any time, whether being dealt with by staff of Justice Health, Dr Dayalan, or Professor Greenberg, was fully forthright or honest in relation to his state of mind and difficulties. In my view, it appears that from the outset, he endeavoured to play a number of cards to mitigate his position, that is, the racist, religious, and victim cards. I also note, as referred to in Professor Greenberg's report that a Justice Health nurse, in a mental health assessment on 1 December 2017 indicated that the offender had been hoarding four months' worth of tablets in his cell, which had resulted in some deterioration of his mental state.

43. Originally having been born in Afghanistan, his family moved to Pakistan when he was about five years of age. Despite his presence in Afghanistan only up to the age of five, he has made various claims about being exposed to the actions of war in Afghanistan and resulting trauma. He also claims to have been physically abused by his siblings, and I note there are a number of references to him accessing medical books while in custody, and to what would appear to be somewhat delusional beliefs about his ability to become a doctor. Dr Greenberg stated:

"At this time, I am of the view that Mr Mansory has no current overt psychosis. He does at times tend to talk with rapid speech and this is largely related to his anxiety. Having reviewed the documentation provided by Justice Health, I am of the view that his elevated mood may be more related to his heightened level of anxiety and significant personality problems. He tends to be overfamiliar in his manner, guarded to questions, and has a need to present himself in an elevated manner when questioned about his reported behavioural problems. He does not appear to present with significant personality problems. He does appear to present with significant personality problems where he tends to focus on his victim agenda, avoiding questions, and challenging the psychiatrist about the clinical assessment.

In summary, I am unable to make a definitive diagnosis at this time, primarily because of the lack of cooperation with the psychiatric assessment. I note that in the Justice Health medical records, Mr Mansory has seen several mental health nurses and psychiatrists. There have been a variety of diagnoses during his period of incarceration, including PTSD, delayed grief reaction, personality problems, ADHD and psychosis not otherwise specified, anxiety, and depression. At this time, I am therefore of the view that no definitive diagnosis has been made. …

… He is clearly anxious about his legal situation and appears to have a strong victim agenda as his first line of defence to answering clinical questions. I am unable to make or exclude any definitive diagnosis/diagnoses at this time, and therefore my psychiatric opinion should be interpreted in this context."

44. It is unfortunate that Professor Greenberg was not asked to provide a more current assessment of the offender post the decision to withdraw the application relating to fitness to plead. I accept, however, that Dr Dayalan, as a qualified and experienced forensic psychiatrist employed by Community Corrections to assist persons in custody, has had a more significant opportunity to interview and consult with the offender. He has apparently assessed him on somewhere between six and ten occasions, mostly in person, although his initial consultation was by AVL link. He expressed the view that he was reasonably confident that the offender was suffering from a Bipolar Affective Disorder. He stated in his final report:

"Mr Mansory has had presentations characterised by elated mood, pressured speech, thought disorder, disinhibited behaviour, grandiose ideas, and increased motor activity. He had also described auditory hallucinations and presented with poor concentration during assessments. His presentation has improved significantly following treatment with antipsychotic/mood stabiliser medication.

Mr Mansory's history and presentation would be consistent with a diagnosis of Bipolar Affective Disorder currently in remission. A differential diagnosis of Schizoaffective Disorder will also need to be considered, given his report of auditory hallucinations despite stabilisation in his mood.

Mr Mansory had presented as agitated and with impaired concentration when reviewed by health professionals soon after his incarceration. This observation in the context of his psychiatric disorder would be suggestive of Mr Mansory suffering from a mood episode at the time of his arrest. His behaviour as described in the facts sheet reflects disinhibition and poor judgment, which are commonly associated with manic episodes.

Following incarceration, it has been noted that Mr Mansory has a history of presenting as overfamiliar and inappropriate in the context of manic episodes. It was noticeably absent on this review when he has been adequately medicated and his illness appeared to be in remission.

It is very likely that Mr Mansory's cognition and behaviour at the time of the offence were affected by untreated Bipolar Affective Disorder".

45. The offender's past personal history is not fleshed out in any great detail in the material before me. I have already referred to his being born in Afghanistan and going with his family to Pakistan at the age of five. He has no past psychiatric admissions nor any significant past medical history. He has not to any significant extent ever used prohibited drugs, and in the past has apparently been a very limited drinker of alcohol.

46. He informed Professor Greenberg that his mother had died 18 months ago: that is, prior to the consultation on 28 February 2018. According to the offender's sister, his mother died in 2013. It is because of discrepancies of that nature that I have some difficulty in accepting the offender as a reliable historian, and also in relation to who it is that he has alleged from time to time abused him in the past.

47. His father apparently had two wives beside the offender's mother, being Muslim, and the offender has some ten to 15 half‑siblings as a result of the two further wives. He is said to have a good relationship with his biological siblings, at least those who reside in Sydney, being Carlos and his sisters Qudsia and Nadia. Letters from Carlos and Nadia support their continuing commitment to assisting the offender. I am sorry, I referred to Pakistan before, but in fact it was New Delhi in India. His father apparently died in New Delhi and he was raised by his mother.

48. The family were apparently sponsored as refugees to migrate to Australia when he was ten years of age. He attended Hornsby Heights Primary School at the age of 11 and completed Year 12 at Ku‑ring-gai High School, where he claims he obtained an ATAR of 86. He apparently was not expelled from school but was suspended on one occasion for fighting.

49. After leaving school, he worked both full‑time and part‑time for McDonald's restaurants. He claims to have risen to the rank of crew trainer but left that employment due to family pressure to obtain a better job. He has apparently worked in a restaurant at Darling Harbour for some nine months as a waiter. He claims to have attended University of Western Sydney for a two‑year period studying IT, but completed only one course. When Professor Greenberg asked him what he had been doing for the past two years, he sarcastically replied, "I went to the moon. I became an astronaut". At the time of the interview, he had not worked for approximately two or three years, but inconsistently then claimed that he was working at a Cockle Bay restaurant just prior to the time of the alleged offence.

50. I am unsure as to any of the detail provided in relation to any of his family, as to whether his mother was ever a nurse or a doctor as he informed Dr Dayalan, or his mother a surgeon as he informed Professor Greenberg, or that he had a stepbrother in Afghanistan who was a doctor. He claims to have had two intimate relationships, of seven and three and a half years respectively. He is the only source of that information.

51. Clearly, at the age of 32 with no previous history of offending, and despite the fact that there is no previous history of psychological or psychiatric difficulties, the offender's commission of this offence in the circumstances in which it occurred is not only difficult to understand but has a bizarre element to it. The relevance of the South Australian offences is that having fled the jurisdiction while on bail in New South Wales, he committed a further offence of a not dissimilar, but also seemingly bizarre in the circumstances, offence.

52. It is for that reason and because of Dr Dayalan's greater exposure to the offender that I accept Dr Dayalan's opinion that the offender has suffered to some extent from a Bipolar Affective Disorder in the past, currently in remission, although noting that there is also a differential diagnosis of Schizoaffective Disorder. It has not yet been resolved.

53. Although Dr Dayalan expresses the opinion that his cognition and behaviour at the time of the offence were affected by untreated Bipolar Affective Disorder as only being very likely, I accept that that is relevant to the assessment of the offender's moral culpability, in that it must to some extent reduce his moral culpability for the offending, and that accordingly, there is not the same call for denunciation and punishment as would otherwise be appropriate, as referred to in R v Hemsley [2004] NSWCCA 228 at paras [33] to [36] where the relevant considerations are set out. I accept that the need for general deterrence in these circumstances is moderated.

54. Although I note that the offender is said to have suffered two minor assaults while in custody, I am unable to find on the evidence before me that his mental health state will result in a sentence weighing more heavily on him than an offender who does not suffer from the same mental state, noting of course that while medicated, he appears to be in remission.

55. As to the offender's prospect of reoffending, I am concerned that the offending before me was followed by further offending of a not dissimilar nature, although occurring at a time when he was still unmedicated, in South Australia. I am concerned by the fact that in the past, the offender has shown a disregard for complying with the requirement to consume medication designed to be helpful to him.

56. I note that Dr Dayalan in his final report indicates that the offender has limited insight into his mental illness, and that accordingly, he recommended that he continued to have depot antipsychotic medications. He opined that effective management of his illness and engagement in psychological treatments recommended by Dr Dayalan would assist with significantly reducing his risk of reoffending. I accept that should the offender continue to take the prescribed medications, particularly by way of compulsory injection, there would be a significant reduction in the prospect of reoffending and at least a reasonable prospect of rehabilitation.

57. In relation to rehabilitation, I note that the offender has not given evidence on sentence. A plea of guilty in itself does not necessarily indicate an expression of remorse or contrition. There is no information in any of the reports before me that the offender has ever expressed remorse or contrition for his offending conduct. The sole reference appears to be that contained in his brother's letter to the Court of 4 February 2019, in which he states:

"I know personally from the conversations we have had since his offence that he is utterly despondent in the knowledge of the deleterious impact of his actions. Mahbu has expressed remorse for what he did".

58. There is no information as to how remorse was expressed, that is, whether it was remorse for the effect of his conduct on the victim and the community, or simply regret for having committed an offence which has seen him now in custody for a period of more than two years. I am not prepared to accept the statement in his brother's letter as acceptable evidence of genuine remorse or contrition, although of course I accept that it provides some evidence of remorse and contrition.

59. I also express some disquiet in relation to the offender, in that a countervailing consideration in relation to mental illness is the level of danger which an offender may present to the community. In this case, should the offender cease psychiatric treatment and consuming appropriately prescribed medications, it is in my view likely that he will in the future, his poor mental state returning, be at risk of committing similar offences.

60. I have taken all of those matters in to account, as well as the utility discount I previously referred to. I note that I have also taken into account the fact that he has essentially been in a continuous period of custody since being arrested in South Australia. I also take into account that offences of this nature are regarded seriously by the community and by the legislature, which is why a maximum sentence of 14 years has been provided, and although not strictly relevant in relation to this matter except as a guidepost, a standard non‑parole period of seven years. In sentencing an offender, the sentence must reflect the objective seriousness of the offence, as well as the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

61. In my view, in relation to this offender, there is still some need for the sentence to reflect specific deterrence, although diminished, as well as general deterrence as previously referred to, as well as meeting the fundamental purpose of punishment, that is, the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, and no submission to the contrary has been made, appropriately, by Ms Fernando on his behalf.

Accordingly, Mr Mansory, would you please stand?

62. In relation to the offence of sexual intercourse without consent, you are convicted. You are sentenced to a term of imprisonment with a non‑parole period of three years, commencing on 31 July 2016. The non‑parole period will expire on 30 July 2019. The balance of the term is one year, six months, giving a total sentence of four years, six months, with a non‑parole period of three years. The total term will expire on 30 January 2021.

63. Mr Mansory, you will not automatically be released on 30 July 2019. It will be subject to a determination by Corrective Services as to whether you should be released or not. That will depend on how you have performed while in custody and the extent to which you have participated in any possible program of rehabilitation or treatment. For you, there is not much time, obviously, left for any program of rehabilitation. But you should ensure that you at least comply with the requirement to take medication from time to time.

64. I have no doubt that you understand that if when released you are in breach of the parole, you will be returned to custody. I have varied the statutory relationship between the non‑parole period and the balance of the term because this is your first period of time in custody, and also, in part, recognition of the time you spent in custody as part of a continuous period in South Australia, that is, the totality of the periods, and because, as I perceive it, you would need a more extended period of parole in an endeavour to ensure that you do not reoffend and to receive the necessary assistance.

Thank you, you can sit down. Is there any matter I missed?

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Decision last updated: 05 April 2019