R v Omar - [2019] SASC 26

Supreme Court of South Australia
(Criminal)
R v OMAR
[2019] SASC 26
Judgment and Sentencing Remarks of The Honourable Justice Bampton
22 February 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
Defendant pleaded guilty to indecent assault before a Magistrate – Magistrate referred the matter to this Court for sentencing and consideration of whether an order should be made pursuant to the Criminal Law (Sentencing) Act 1988 (SA) s 23 – Criminal Law (Sentencing) Act 1988 (SA) repealed – application pursued under the Sentencing Act 2017 (SA) s 57.
Held:
1. The defendant is sentenced to imprisonment for two years and 10 months;
2. The Sentencing Act 2017 (SA) s 57 application is dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 2017 (SA) s 57; Criminal Law Consolidation Act 1935 (SA) s 56; Summary Offences Act 1953 (SA) s 23, referred to.

R v OMAR
[2019] SASC 26
Criminal

BAMPTON J: The sentencing remarks read aloud to Mr Omar on 22 February 2019 with the assistance of an interpreter are set out at the end of this judgment as Annexure A.
Abdshakur Ishmail Omar was arrested at the Hutt Street Centre on 21 July 2017 and charged with indecent assault alleged to have been committed on 7 July 2017. Bail was opposed at his first appearance on 24 July 2017 and a Bail Enquiry report ordered “to address any mental health issues and the availability of a suitable address for bail purpose”. Thereafter, bail was not applied for — I assume because Mr Omar was homeless and had no suitable bail address. Mr Omar has been in custody since 21 July 2017.
Mr Omar pleaded guilty to the indecent assault before a Magistrate on 18 October 2017.
The circumstances of the indecent assault committed on 7 July 2017
Just after 5.00 pm on 7 July 2017, the 14-year-old victim caught a bus on her way home from school. Once on the bus, the girl noticed the bus driver went to the back of the bus and woke a man up from sleeping. The man was Mr Omar who said that he would be getting off at the next stop.
When the bus driver started driving the bus, Mr Omar, in the girl’s words, “started going off” because he did not know where he was. Five or ten minutes later, Mr Omar came and sat across from the girl facing her. Mr Omar started and kept on asking the girl; “where are we?”, “how old are you?”, and “where do you get off?”. The girl did not answer. Mr Omar then placed his right hand on the girl’s right upper leg and moved it up and down. The girl said, “Can you please stop”, but Mr Omar kept going. The girl then got off at her bus stop. As the girl was getting off, Mr Omar said, “Don’t stay, I need someone”. The girl reported that Mr Omar smelled of alcohol and urine, that he was hard to understand, and was drunk because he could hardly stand up. Mr Omar was subsequently identified on CCTV footage and arrested on 21 July 2017. The bus driver also reported that Mr Omar was grossly intoxicated.
The referral to the Supreme Court pursuant to s 23(2)
The Magistrate referred Mr Omar to this Court pursuant to s 23(2) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”), for sentencing and for consideration of whether an order for indefinite detention should be made.
The matter came before me in the arraignment list. Section 23(3) mandated that, before determining whether to make an order that a person be detained in custody until further order, the Court must to direct that two medical practitioners enquire into mental condition of the person and report on whether the person is incapable of controlling or unwilling to control his or her sexual instincts. I made an order directing that two medical practitioners, to be nominated by the Director of Forensic Mental Health, assess Mr Omar and report to the Court.
Reports were received from the psychiatrist Dr Ian Jennings, dated 20 April 2018, and the psychiatrist Dr Paul Furst, dated 19 June 2018.
On 30 April 2018, the CLSA was repealed by the Sentencing Act 2017 (SA) (“the Sentencing Act”) and s 57 replaced s 23 of the CLSA. At a directions hearing on 26 July 2018, the Court was informed that the Director of Public Prosecutions (“the Director”) had decided to pursue the application for indefinite detention pursuant to s 57 of the Sentencing Act and sought a date to cross-examine Dr Jennings and Dr Furst.
Antecedents
Dr Jennings and Dr Furst were provided with a declaration of the victim of the 7 July 2017 indecent assault, a copy of Mr Omar’s antecedent report, offender history report, and apprehension reports relating to an indecent assault committed in 2007, indecent behaviour committed in 2013, and a grossly indecent act committed in 2014.
The offender history report records that charges of rapes alleged to have been committed on 13 February 2005 and 27 November 2006 were dismissed for want of prosecution. The apprehension report pertaining to the indecent behaviour also records allegations of two indecent assaults which were withdrawn on 20 May 2014. I make reference to these matters by way of background only and note that they are referred to by Dr Jennings and Dr Furst in their reports.
In addition, Mr Omar has, on my count, 16 convictions for disorderly behaviour, two convictions for urinating in a public place, three convictions for common assault, and numerous breaches of bail and several proven bond breaches.
The first conviction for indecent assault
Mr Omar committed an indecent assault on a train at approximately 5.00 pm on 13 February 2007. A young woman, on her way to a TAFE lecture, boarded a train and sat at the rear of a carriage to be on her own. The Magistrate’s sentencing remarks record that soon after Mr Omar, who was noted to be affected by alcohol, boarded the train with a group of about six others. Mr Omar sat opposite the young woman and:[1]
[9]… immediately touched her legs. He then tried to force her legs apart. The victim became immediately concerned about her safety. She formed the impression that the defendant was attempting to open her legs to look at her vagina. The victim pushed the defendant’s hands away. Shortly after he again touched her on the legs and said something about trying to make the other woman jealous. The victim slapped the defendants hand away again.
[10]Approximately two minutes later the defendant grabbed the victim on her right breast and moved his hand about. The victim felt frightened and intimidated. She stood up to move out of the seat but the defendant put his legs across the seats to stop her leaving. He told the victim not to go. … The victim then stepped across the defendant’s legs and moved to the other end of the carriage. She called her parents on her mobile phone and arrangements were made for the police to attend at the Adelaide railway station.
[11]The police met the train. The victim approached an officer and told him what had happened. A lot of people were milling around as they got off the train but the victim immediately identified the defendant as he stepped off. She was greatly distressed and in tears according to the police officer.
[1] Remarks on Penalty, Magistrates Court of South Australia, Magistrate Kitchin, 19 March 2016.
Mr Omar pleaded guilty and was convicted of indecent assault. He was sentenced to an immediate custodial sentence of 12 months’ imprisonment with a seven-month non-parole period. Mr Omar also admitted breaching a bond he had entered into on 16 December 2005 and was ordered to serve the sentence of 21 days underlying the bond concurrently with the indecent assault sentence.
The indecent behaviour conviction
Mr Omar committed the offence of indecent behaviour on 2 September 2013 when he exposed his penis on a bus. The apprehension report records that CCTV footage showed him sitting next to a young man on a bus, exposing his penis, and being asked to leave by the bus driver for lying down on the backseat of the bus. Mr Omar was convicted on 30 June 2014 of indecent behaviour and sentenced to six weeks’ imprisonment which was suspended upon him entering into a bond to be of good behaviour for two years and to be supervised for 12 months.
The grossly indecent act conviction
On 3 October 2014, Mr Omar was observed by police having consensual anal sex in Veale Gardens with a man. He was convicted of a grossly indecent act and other offending on 26 February 2015. He was sentenced as follows:
1.Two months’ imprisonment for the grossly indecent act;
2.Two months’ imprisonment for two counts of failing to comply with a bail agreement;
3.Four months’ imprisonment for basic assault;
4.A breach of suspended sentence bond he had entered on 30 June 2014 in relation to his previous conviction for indecent assault was found proved. The suspended sentence was revoked and the sentence of six weeks underlying the bond was ordered to be served.
The four sentences were ordered to be served cumulatively. The final head sentence imposed on 26 February 2015 was a sentence of eight months and six weeks’ imprisonment. The sentencing Magistrate ordered that Mr Omar be released on a bond to be of good behaviour for 12 months with conditions and supervision after serving four months in custody.
In summary, the convictions relevant to my sentencing of Mr Omar and the application pursuant to s 57 of the Sentencing Act are the indecent assault on 13 February 2007, the indecent assault committed 10 years later on 7 July 2017, the indecent behaviour on 2 September 2013, and the grossly indecent act on 3 October 2014. The indecent assaults, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA), are minor indictable offences. The indecent behaviour and grossly indecent act, contrary to s 23 of the Summary Offences Act 1953 (SA), are summary offences. Offences under s 56 of the Criminal Law Consolidation Act and s 23 of the Summary Offences Act fall within the definition of “relevant offence” in s 57 of the Sentencing Act.
Mr Omar’s personal circumstances
Mr Omar was born in Mogadishu, Somalia in 1972. He has reported that he lived in Somalia until he was 20, before fleeing civil war to a refugee camp in Kenya. His father died in Somalia and, as far as he knows, his mother still lives in Somalia. He has a brother and sister in Australia, with whom he has no relationship. Mr Omar has reported that he witnessed “things, the shit” during the Somalian civil war that he does not want to talk about. It appears that Mr Omar’s alcohol use escalated upon his migration to Australia at the age of 24 in his words to “block out” his experiences in the Somalian war and a refugee camp. Mr Omar is single and has no children.
Mr Omar has variously reported that he was on the disability support pension or the Newstart benefit. He has a history of homelessness.
Pre-sentence report of 30 November 2017
The author of a pre-sentence report dated 30 November 2017 reported that Mr Omar was likely to be experiencing a complex range of mental issues relating to the trauma he experienced during the Somalian civil war and in the refugee camp and unresolved grief at the death of a partner, his abandonment from his parents, and the families of his girlfriends who have rejected him.
The pre-sentence report records that Mr Omar has been supervised on several bonds, bail agreements, and once on parole by the Department for Correctional Services. The Department for Correctional Services records indicate that Mr Omar reported for supervision as directed (often intoxicated), attended an assessment at Owenia House for treatment for sexual behaviour issues, and was returned to custody on several occasions for fresh offending. Mr Omar has been referred to Drug and Alcohol Services South Australia withdrawal services, but has not received treatment other than admissions for detoxification.
Report from the Rehabilitation Programs Branch of the Department for Correctional Services
Counsel for the Director obtained a report from the Rehabilitation Programs Branch of the Department for Correctional Services. The author of the report stated that the sexual behaviour clinic (“SBC”) (which runs for approximately 10 months) is provided once per year, and the SBC-Me clinic is provided once every two years and runs for about 15 months. The author of the report said that in the case of prisoners detained pursuant to s 57, the Rehabilitation Programs Branch considers such prisoners to be of high priority for rehabilitation and efforts are made to prioritise their placement on the program as soon as possible.
Once the Court makes an order pursuant to s 57, the prisoner goes onto a waiting list for assessment to determine his suitability for a program. Assessment may include a neuropsychological assessment, which takes four weeks to complete. An alcohol abuse module is part of any sexual behaviour clinic program. Literacy is one of the assessments undertaken to determine suitability for a program. Should a prisoner be assessed as having insufficient literacy skills, he would be enrolled in education classes to improve his literacy prior to group participation.
Dr Furst
Dr Furst gave evidence on 27 September 2018. Dr Furst interviewed Mr Omar on 21 May 2018 over two hours in the presence of an interpreter. Dr Furst reported that Mr Omar has “pretty good conversational English” and that he was able to understand everything Mr Omar told him, but that there were times when Mr Omar used the interpreter to clarify the odd word.
Dr Furst said that Mr Omar was insightless, had very poor judgement, minimised his offending and did not recognise the significance of his alcohol misuse. Dr Furst said that Mr Omar does not have any symptoms of post-traumatic stress disorder.
Dr Furst formed the view that Mr Omar’s has been living from moment to moment, pay check to pay check, and that his life has revolved around drinking and homelessness. Dr Furst considered that, in view of the fact that Mr Omar was intoxicated on each of the occasions he offended, his alcohol abuse is a significant factor in his offending in that he is more disinhibited and has less control of his sexual instincts when intoxicated. The fact that three out of four sexual offences have been committed on public transport suggested to Dr Furst that these offences are impulsive rather than pre-planned.
Dr Furst considered that Mr Omar’s risk of reoffending when sober is different. Dr Furst commented that, whilst Mr Omar’s history of minor offending puts him at increased risk of offending, when sober his risk of sexual offending would be significantly decreased.
Dr Furst raised a concern that if Mr Omar were released into the community without any conditions that there would be a very high risk that he would return to his former lifestyle which would be fairly aimless, involve drinking a lot, with the “fairly high risk of similar type” offending. In this regard, Dr Furst considered that Mr Omar meets the definition of unwilling. In relation to the question of whether Mr Omar is incapable of controlling his sexual instincts, Dr Furst said that the more often Mr Omar is highly intoxicated the higher the likelihood that he will offend sexually. Conversely, Dr Furst stated Mr Omar’s capacity to control would be the same as anyone else’s, the more often he is sober and the more often he has a low level of intoxication.
Dr Furst advised that if Mr Omar were to be released into the community, the first item to address would be his access to alcohol. If he were prohibited or prevented from accessing alcohol, his risk of intoxication and sexual offending would significantly improve.
However, Dr Furst said that it is just not access to alcohol that needs to be considered. There are a number of other interventions that are required to improve Mr Omar’s chances of maintaining abstinence.
It appears that Mr Omar has led a transient and homeless existence for many years. As Dr Furst noted, Mr Omar needs accommodation and to find things to occupy his day that do not involve drinking and riding aimlessly on public transport. Dr Furst stated that he needs to have a closely monitored, structured management plan in the community, incorporating rehabilitation in relation to both his sexual offending and alcohol use.
Significantly, Dr Furst considered that it is important that Mr Omar undergo a neuropsychological assessment. Dr Furst said that Mr Omar’s presentation caused him to wonder whether he suffers an intellectual impairment. He noted that the person assisting with interpretation said that Mr Omar was “not quite right in the head”.
Dr Furst commented that the SBC program requires a relatively higher order of intelligence, compared to the SBC-Me program. As such, Dr Furst’s considered that Mr Omar would need to undergo neuropsychological assessment to determine his capacity to learn and maintain the information he would receive.
Dr Furst concluded that the difficulty, given Mr Omar has a propensity to offend, is that there is always the chance that his offending might escalate, but it could go the other way — it is just not known. If Mr Omar continued to drink, there is a chance that he will offend in a more serious way.
Dr Furst considered that Mr Omar’s release into the community was unlikely to be successful unless it was highly structured and supervised (for example, if he were on home detention or monitored electronically) and Mr Omar was motivated to give up alcohol.
Finally, Dr Furst said that Mr Omar’s best chance of completing either the SBC or the SBC-Me treatment program is in custody because he would not have access to alcohol there.
Dr Jennings
Dr Jennings gave evidence on 31 October 2018. Dr Jennings considered that Mr Omar’s principal diagnosis is alcohol use disorder. He, like Dr Furst, stated that in the community Mr Omar was drinking very heavily and recurrently, and all of his offending seemed to occur when intoxicated. Accordingly, Dr Jennings concluded that when intoxicated Mr Omar is incapable of controlling his sexual instincts. Dr Jennings said that when discussing his sexual offending, Mr Omar could not relate to the criminal acts he had engaged in. Dr Jennings considered that when sober Mr Omar is capable and that the question really relates to his willingness to deal with his alcohol abuse.
Dr Jennings commented that Mr Omar has been referred to, but has failed to complete alcohol rehabilitation programs. Dr Jennings said that unless Mr Omar’s alcohol addiction is addressed, there is a significant risk that when intoxicated, he would fail to exercise appropriate control of his sexual instincts
Dr Jennings, in noting that Mr Omar has very few social supports and very little social structure in the community, said he feared that the stressors that Mr Omar would experience when returning to the community would put him at high risk of returning to alcohol abuse.
Dr Jennings considered that Mr Omar would be best served by a longer‑term inpatient rehabilitation unit.
Dr Jennings is of the opinion that Mr Omar suffers post-traumatic stress disorder as a result of the trauma he suffered having to flee the Somalian civil war and in a Kenyan refugee camp.
Dr Jennings summed up his opinion, stating that Mr Omar’s alcohol disorder needs to be addressed as a priority in order that his post-traumatic stress disorder and risk of reoffending can be addressed.
Sentencing for the indecent assault committed on 7 July 2017

As noted earlier, Mr Omar has been in custody since the date of his arrest at the Hutt Street Centre.
He is entitled to a discount of up to 30 percent on account of his guilty plea.
Mr Omar, through his counsel, has indicated that he is prepared to undertake courses that are recommended and provided to him. Mr Omar’s counsel asked that I sentence Mr Omar and await the outcome of any treatment course that may be offered to him before I determine the s 57 application. The difficulty with this submission is that Mr Omar will not be given priority to undergo a sexual offenders program in custody unless he is subject to a s 57 order.
At most of the hearings before me, Mr Patrick (a team leader of reintegration services at OARS Community Transitions) has been in attendance. Mr Omar was initially referred to OARS Community Transitions in February 2017 for 10 hours of case management support per week, via funding from the Exceptional Needs Unit of the Department for Human Services SA.
My chambers forwarded a letter to Mr Patrick seeking further information regarding the case management support provided to Mr Omar. Mr Patrick advised in correspondence received by the Court on 20 February 2019:
… The Exceptional Needs Unit fund non-government organisations to provide assertive case management to eligible clients.
An eligibility assessment was undertaken by a Senior Practitioner at the Exceptional Needs unit after receiving a referral from Street to Home Service. Eligibility criteria for the Exceptional Needs Unit includes:
•Behaviours that are difficult to manage and that threatens their own or the safety of others
•Have a mental health diagnosis that is difficult to manage with medication alone and affects their ability to live without daily support
•Have a diagnosed intellectual disability, or an acquired brain injury that is the result of lifestyle including chronic drug or alcohol abuse, physical assaults or accidents.
•Have experience of early trauma including family violence, family breakdown and abuse (sexual, emotional, physical)
•Experience extremely poor and complex health problems
•Have a history of homelessness and have been involved with the criminal justice system, including youth detention and prison.
Information from the Exceptional Needs Unit was that Mr Omar’s eligibility was based on homelessness, long term alcohol use, offending history and early onset ageing. Whilst there is no formal diagnosis it is suspected that Mr Omar may have an alcohol related brain injury and early onset Korsakoffs and Post Traumatic Stress Disorder. Korsakoff syndrome is a chronic memory disorder caused by thiamine deficiency associated with prolonged ingestion of alcohol.
OARS was provided funding by the Exceptional Needs Unit to provide 10 hours of case management support per week commencing February 2017. The initial service plan included the following overarching goals:
•Access to suitable accommodation
•Access to Alcohol and Other Drug Services
•Links with Medical Services
•Access to community activities that Mr Omar could attend independently.
At the time that OARS commenced working with Mr Omar he was homeless; engagement with Mr Omar was sporadic due to his transient status and reluctance to commit to appointments and the fact that he did not have a working mobile in order to maintain contact.
In July 2017 Mr Omar was offered a tenancy in Camden Park by SA Housing Authority; it was at this time that he incurred the charges for which he is currently remanded with the property offer subsequently rescinded.
During the period of incarceration OARS has maintained contact with Mr Omar both face to face and via telephone. This service has also been liaising with SA Housing Authority who have reported that whilst eligible for a further property offer no such offer can be given consideration without a projected release date.
All clients of the Exceptional Needs Unit are required to be assessed for the National Disability Insurance Scheme (NDIS). If eligible funding via the Exceptional Needs Unit ceases with clients accessing NDIS registered support agencies through their NDIS funding stream. Given this requirement there is no guaranteed timeframe of how long the funding through the Exceptional Needs Unit will be available.
Mr Omar will be required to undertake the NDIS eligibility assessment and if approved will be able to access an alternative support service of his choice.
The contents of Mr Patrick’s correspondence emphasise Mr Omar’s need for a neuropsychological assessment and that any release into the community must be closely supervised and highly structured.
Having regard to Mr Omar’s history of offending and the psychiatric evidence, Mr Omar’s prospects of rehabilitation are very poor and his risk of reoffending is very high unless he is prohibited from drinking alcohol, has a place to live and his alcoholism managed. The evidence is to the effect that if Mr Omar’s alcoholism can be controlled he has a better chance of undergoing sex offender rehabilitation. I note that alcohol and sex offender rehabilitation may be provided together. This can only occur in the community if Mr Omar is closely supervised and his release is highly structured to give him the best prospect of rehabilitation.
Mr Omar has been in custody for 19 months without sentence. As an unsentenced prisoner, he has not been offered any rehabilitation programs or undergone neuropsychological assessment.
Arriving at a sentence in this matter has proven to be a very difficult task. I have kept in mind at all times that the safety of the community is of paramount importance. I have arrived at a sentence in accordance with the primary and secondary sentencing purposes prescribed by the Sentencing Act. Although Mr Omar’s offending to date has involved indecent assaults at the lower end of seriousness and summary indecency offences, personal deterrence is an extremely important factor. It is imperative that his alcoholism is addressed in order that he is not at risk of reoffending.
Having considered all sentencing options, I have arrived at the position that in Mr Omar’s circumstances what would in isolation appear to be a disproportionate sentence for a minor indecent assault is the appropriate sentence in his case. The sentence I impose provides for the protection of the community and will give Mr Omar the best prospect of receiving appropriate treatment, review and supervision.
It will be for the Parole Board to determine any conditions of a closely supervised, highly structured release on parole.
The maximum penalty for indecent assault is eight years’ imprisonment. I would have sentenced Mr Omar to four years’ imprisonment. I reduce that by just under 30 percent on account of his guilty plea to two years and 10 months. I fix a non-parole period of 19 months.
I dismiss the s 57 application. In arriving at this decision, I have kept in mind that the protection of the community is of paramount importance in determining whether to order that Mr Omar be detained in custody until further order. When sober, Mr Omar is not incapable of controlling his sexual instincts. The question of whether he is willing to control his sexual instincts rests upon his willingness to abstain from alcohol abuse.
I refer the reports of Dr Jennings and Dr Furst and these reasons to the Department for Corrections and the Parole Board.
Annexure A
INTERPRETER PRESENT
HER HONOUR IN SENTENCING SAID:
Abdshakur Ishmail Omar, you were asleep on a bus on 7 July 2017. The bus driver woke you up from sleeping. You then sat near a 14-year-old girl and spoke to her. You put your hand on her leg and moved your hand up and down. The girl asked you to stop. The girl then got off at her bus stop. The girl said that you smelled of alcohol and urine.
You were arrested at the Hutt Street Centre on 21 July 2017.
Touching the 14-year-old girl on the leg is a crime called indecent assault.
You told a Magistrate in October 2017 that you were guilty of the indecent assault. The Magistrate decided a Supreme Court Judge should decide your sentence for the indecent assault. The Magistrate also decided that a Supreme Court Judge should decide whether you should be kept in gaol if you are not capable of controlling or not willing to control your sexual instincts.
Two psychiatrists examined you and wrote reports about you. Their reports were about whether or not you are capable and whether or not you are willing to control your sexual instincts.
Dr Furst told me when he came to court that your biggest problem is your drinking and that you have less control of your sexual instincts when you drink. Dr Furst said that when you are sober your risk of breaking the law is lower. Dr Furst says that because you have broken the law a lot of times there is a bigger risk that you will commit another crime.
Dr Furst thinks that if you drink a lot when you leave gaol there is a big risk that you will commit a sexual crime. Dr Furst also thinks that if you keep sober you would be able to control your sexual instincts and not commit crimes. Dr Furst says that if you are released from gaol, the first thing that you have to do is to get help to stop drinking. You need a place to live, you need treatment so that you do not commit another sexual crime.
Dr Furst says that you do not have much understanding of your behaviour and that you make poor judgments. Dr Furst recommends that you be assessed by a neuropsychologist to find out your level of intellectual functioning and whether you have an intellectual impairment.
Dr Jennings also told me that when you are drunk you are not capable of controlling your sexual instincts. Dr Jennings says that because you commit crimes when you are drunk your abuse of alcohol suggests that you are not willing to control your sexual instincts. Dr Jennings says that your alcohol addiction must be addressed, if not there is a big risk that you could commit another sexual crime. Dr Jennings thinks that you might suffer post-traumatic stress disorder as a result of the trauma you suffered in the Somalian war and as a refugee.
Dr Furst and Dr Jennings both think that when you decide to drink and get drunk you are not willing to control your sexual instincts and when you are drunk you are not capable of controlling your sexual instincts.
You have a history of committing crimes dating back to 2002. You committed an indecent assault against a young woman on a train in February 2007. You put your hand on the woman’s legs and tried to push them apart. You also touched her breast. It appears you were drunk when you did this. You were convicted of indecent assault and sentenced to 12 months’ gaol with seven months non-parole.
In September 2013, you exposed your penis on a bus. In October 2014, the police found you having sex with a man in a public garden. You were sentenced to two months’ imprisonment for that crime.
You escaped the war in Somalia and you were living in a refugee camp in Kenya. Your father died in Somalia and your mother still lives in Somalia.
You came to Australia when you were 24. You have a brother and sister in Australia, but you do not see them. When you came to Australia your drinking got worse. You said that you drank alcohol to block out your experiences in the war and the refugee camp.
You have a history of homelessness and unemployment. You have been referred to alcohol rehabilitation but you have never finished a program.
You have breached many bail agreements and good behaviour bonds. Your prospects of rehabilitation are very poor and your risk of re-offending is very high.
Mr Patrick from OARS has told me that you are receiving 10 hours of case management support through money from the Exceptional Needs Unit of the Department for Human Services. Mr Patrick says there is a concern that you may suffer alcohol-related brain injury and post-traumatic stress disorder.
I now turn to the sentence for the indecent assault that you committed on 7 July 2017. You have been in custody since you were arrested on 21 July 2017.
The 14-year-old girl you assaulted would have been very frightened to have a drunk, older man touch her. People must feel safe when travelling on public transport.
In sentencing you, the most important thing is the safety of the community. It is also important that I punish you for the indecent assault and that you are held accountable for your crime. In your case I have to give you a sentence to stop you from committing crimes.
You have a big alcohol problem. You need intensive rehabilitation for alcohol and sex offending. When you are released into the community you need the best chance of rehabilitating and not committing crimes. You will need a highly structured supervision program.
The maximum penalty for indecent assault is eight years in gaol. You are entitled to up to 30 percent discount because you pleaded guilty in the Magistrates Court.
The sentence I impose may seem on its own to be a very high sentence, but in your case I have decided it is necessary.
I sentence you to four years’ imprisonment reduced by just under 30 percent to two years and 10 months’ imprisonment. I fix a non-parole period of 19 months.
You can now apply for parole, but it will be for the Parole Board to decide whether you can be released into the community with structured supervision, including a neuropsychological assessment, conditions that you do not drink alcohol or go to hotels or bottle shops, that you live at a particular address and that you attend alcohol rehabilitation and sex offender programs.
I have not made the order that you stay in gaol indefinitely.
I am going to give to Mr Vadasz and Ms Boord a copy of my judgment setting out in more detail what I have done. What I have just read to you will be attached to the back of this document. I am going to order that the reports of Dr Furst and Dr Jennings – and I thank Mr Patrick for providing the information to us yesterday – and Mr Patrick’s correspondence are to go to the Department for Corrections and also the Parole Board.
Is there anything I have overlooked counsel?
MS BOORD:     Not from my point of view.
MR VADASZ:    The sentence will date from the time he was taken into custody automatically?
HER HONOUR:         Exactly, yes, from 21 July 2017.
ADJOURNED 2.55 P.M.