R v Rad, John - [2008] NSWDC 286

NEW SOUTH WALES DISTRICT COURT

CITATION:
R v Rad, John [2008] NSWDC 286

FILE NUMBER(S):
07/21/0326

HEARING DATE(S):

JUDGMENT DATE:
11 July 2008

PARTIES:
Regina
John Rad

JUDGMENT OF:
Nicholson SC DCJ

COUNSEL:
Defence: A Ketas

SOLICITORS:
Crown: Ms Daleo

CATCHWORDS:
Criminal Law - sentencing after trial - sexual intercourse without consent (x3) - standard non parole period offences - s.166 CPA - drive whilst disqualified - complainant adult female student - carried from lounge room to bedroom - struck across face - digital/vaginal penetration (x2) - further violence through striking and threat of striking - offender undresses - places condom on penis - penile-vaginal intercourse - penile-vaginal intercourse within mid range of objective seriousness - 40 year old divorced male - refugee - absence of contrition - fair rehabilitation prospects - recommended for CUBIT program - factors found placing offense outside standard non parole period.

LEGISLATION CITED:
Crimes Act
Crimes (Sentencing Procedure) Act
Motor Traffic Acts

CASES CITED:
R v Gladue (1999) 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby (1977) NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Gebrail unreported NSWCCA 18/Nov (1994)
R v Hartikainen unreported NSWCCA 8 June 1993
R v Pay (1999) NSWCCA 40 [7]
R v Dean (2006) NSWCCA 341 at [76] per Grove J at 76, Bell J agreeing
R v Way (2004) 60 NSWLR 168
R v AJP (2004) NSWCCA 434

TEXTS CITED:

DECISION:
Count 1- Convicted and sentenced to a fixed term of three years imprisonment to date from 25 May 2007 and to expire on 24 May 2012.
Count 2- Convicted and sentenced to a fixed term of three years imprisonment to date from 25 May 2007 and to expire on 24 May 2012.
Count 3- Convicted and sentenced to a non-parole period of five years to commence on 25 May 2007 and to expire on 24 May 2012. I set an additional term of three years to expire on 24 May 2015.

JUDGMENT:

JUDGMENT

Power comes in many shapes and sizes. The easily recognised powerful can be among senior politicians, senior administrators, business giants and the mega rich. One decision made by the powerful can impact upon many lives for better or for worse. Power can also be exercised among the more humble. Physical power based upon strength that comes with gender; power springing from strength of mind and will, can impact upon a single life colliding with that exercise of power for better or worse.
Power can be exercised benevolently, authoritarianly or even ruthlessly without attracting the intervention of the criminal law. On the other hand, power used illegally or for an illegal purpose is another matter.
Much, if not most, sexual offending depends upon abuse of power and balance by the more powerful against the weaker. Invariably the abuse of power centres upon the power of the stronger being used to achieve an illegal purpose: in this case, sexual connection with a complainant without her consent.
John Rad, on three occasions, on 6 February 2007, had what the Crimes Act defines as sexual intercourse without the consent of Yuan Yaun Xing without her consent and in circumstances where he knew she was not consenting.
Each of these acts was achieved by a criminal abuse of his power to do what he willed in circumstances where he knew she was not consenting. There can be no doubt he knew such acts were illegal.
A jury having followed the evidence has found him guilty of each offence charged against him.
Today he is to be held accountable for his criminal conduct. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these three offences before the court committed by this offender harming this victim in his community - R v Gladue (1999) 1SCR 688 [80].
My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender - subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.
The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, the standard non-parole period, whether special circumstances are to be found, totality, backup charges or other charges brought from the Local Court to be finalised in this Court, the length of the non-parole period, and finally of course, the ultimate length of the term of imprisonment that is to be imposed.
None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. (See R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.)
Facts
The accused’s case was based upon the sexual encounter of 6 February being the third occasion he and the complainant had had sexual experiences with each other.
The first occasion was said to be at the home of the offender’s friend, Sam in the Parramatta region. The second at the home of the complainant’s sister, Maggie. This third rendezvous was at his flat.
Shortly after arrival, she emerged from the bathroom in a delicate sleeping top and bottom. On this occasion, she was the one aggressively pursuing her sexual desires in the lounge room. It was at his insistence that they adjourned to the bedroom lest a flatmate arrive during their sexual activities in the lounge room.
The complainant was on a student’s visa. The Crown case was that she had no family in Australia. The prosecution case relied exclusively upon the complainant’s evidence. Her account differed significantly from the accused’s.
She first met the accused at a Town Hall bus stop while waiting for a Five Dock bus. He approached and began to talk to her. He persisted during that conversation in seeking her mobile phone number. It was a conversation lasting some ten to fifteen minutes. Not wanting to appear rude, she ended up giving him her mobile phone number. He claimed to be from France and had been to Shanghai. The significance of that was, of course, that the complainant was Chinese.
From time to time she received phone calls from the accused. Indeed the first was shortly after she climbed aboard the bus to Five Dock. She answered some calls, others she did not.
There was a second encounter between them on 2 February at a Town Hall bus stop. Again at his request she supplied her mobile number to him. He sought explanations as to why she was not answering his calls and why she was not prepared to see him. She agreed to see him.
The following day she sent a text message. The day following that she received a phone call from the accused. Arrangements were made to meet in Parramatta. On 6 February, the complainant sent a text message confirming.
Ultimately she arrived at Parramatta and they met at a coffee shop. From there they went to the car park, drove to an Albion pub in Parramatta, had a drink or two there and then moved on to his place.
The basis upon which they moved was that he had a view from his flat to the city and Harbour Bridge. They were to stay there for ten minutes and then go on to a restaurant for dinner. He claimed an appointment at nine o’clock and would have to drop her home before that time.
They drove to the apartment. It was on the fourteenth floor of the building he lived in. She made her way to the sofa. Drinks were prepared and a video put on. He came close to her and said, “You’re a nice girl, I like you,” and kissed her. She pushed him away and said, “No, I don’t want this.” They continued to talk for a bit. He began to touch her legs near the knee. She removed his hand and moved away from him but still on the sofa. He stood in front of her, bent down and kissed her very quickly. It was a strong kiss lasting a little longer than the first. Again she pushed him saying, “I don’t want.”
He returned to the sofa and told her he liked her. He asked her whether she had a boyfriend. She replied, “No, I don’t and I don’t want boyfriend.”
A few minutes passed. He came and hugged her. He asked her to return the hug but she did not. She crossed her hands on her chest.
He picked her up and carried her to his bedroom. At this point she became scared and said, “No, let me down, let me down.” He continued to the bedroom, placed her on the double bed, got on top of her, bent at the knees with his legs apart on the bed. He held her hands on each side of and above her head. She tried unsuccessfully to sit up. She continued to say, “No, no, stop it.” all of which, of course, were messages from her to him indicating an absence of consent.
He released her hands and began to touch her body. He undid her skirt and touched her vaginal area. He began outside her underpants and within a few minutes placed his hand inside her underpants. He touched her vaginal area and began rubbing it, initially outside the vagina but shortly he placed his finger inside, moving his finger for perhaps a minute.
That conduct constitutes the first count in the indictment.
She pushed him and screamed aloud. He moved his hand from her vaginal area and held her neck. He placed the other hand over her mouth to stop her screaming. She was fearful. She thought she might be killed. He said, “Don’t scream. Don’t worry, no sex.”
Again he commenced to touch the vaginal area. She asked if she could go to the toilet, she felt tummy pain. She said she wanted to go to the toilet and repeated that a few times. He became angry and aggressive, raised an open hand above his head. She became frightened. He used his knee to press her legs apart and at some point took off her underpants. She continued to ask to be allowed to go to the toilet. She was slapped on the right side of the face, feeling immediate pain.
He then removed her T-shirt, her bra, and began to kiss and touch her chest, breast and the vagina with his hand, both inside and outside the vagina. He used his fingers when touching her inside the vagina.
That conduct constitutes the second charge on the indictment.
That conduct did not last for long. She was pushing him. Her body language was clearly conveying to him that she was not consenting. He had raised his hand about three or four times to frighten her. I am satisfied each time he raised his hand he was demonstrating that he knew she was not consenting and that he desired that she submit.
He said to her, “You are so sexy, I want to fuck you.” He left the bed, undressed himself, went into the bathroom, retrieved a towel which he put on the bed saying, “I don’t want to make the bed dirty.” He placed her on the towel by rolling her onto it. He reached for a condom from the bedside table. He touched his penis, by which I understand the complainant to mean he was masturbating, and asked her to touch it. She did not want to but did because he was aggressive and angry. She was fearful he would fight her and perhaps kill her.
The offender opened the condom, placed it upon his penis. She was lying face-up, he was on top of her and placed his penis into her vagina. She screamed but not as loudly as she had earlier done because she didn’t want his hand on her neck. The accused had his penis in her vagina for some five to ten minutes, upon her estimate, before he ejaculated into the condom.
That conduct is constituted in the third count in the indictment.
He got off the bed. He said to her, “You are so stupid. You are so stupid.” He said that a few times. He said to her, “You don’t know anything. I won’t drop you home. Stupid.”
He then, with some tissues, asked her to wipe her vaginal area. She went to the bathroom, she dressed herself. He used tissues to clean himself up but remained naked. She emerged from the bathroom and he told her how to get out of the building and make her way to the train station.
The jury, by its verdict, makes plain it rejected the accused’s account entirely. That leaves only the complainant’s account and I act upon it content with her evidence as constituting the proper findings of fact in this matter.
I am satisfied beyond reasonable doubt, prior to 6 February 2007, there had never been any sexual contact between the complainant and the offender. I am satisfied beyond reasonable doubt on 6 February 2007, he was the aggressor, and in pursuit of that role, administered the violence the complainant gave evidence of.
I am satisfied the accused well knew the complainant was rejecting his advances and voicing her objection both through her words and body language as she has described in her evidence.
I am satisfied his humiliation of her continued beyond the sexual assault to the cruel and dismissive remarks upon completion of his acts. These remarks are consistent with an absence of contrition, an insight into his then freshly offending conduct.
Objective Criminality
From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in this case with the criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences is to be evaluated.
The objective criminality has an important impact upon the overall sentencing outcome. Indeed, it is crucial for a determination of whether an offence falls within the mid-range and attracts, thereby, the standard non-parole period.
A useful starting point in the assessment of objective criminality in sexual assault cases is to remind the Court of part of a judgment of Mahoney JA:
“As I have indicated, every offence of this kind is a serious offence, but those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than are involved [in other cases]. It is to be understood that in sentencing it is appropriate - indeed in most cases it is necessary - that the sentencing judge form and record his assessment of where, on the relevant scale of seriousness, the particular offence lies.” (R v Gebrail unreported NSWCCA 18/Nov (1994)).
In 1993, the then Chief Justice, Chief Justice Gleeson, made the point that non-consensual intercourse is an extreme form of violence and one which the community expects courts to take very seriously. (R v Hartikainen unreported NSWCCA 8 June 1993).
Even if no additional violence is administered other than the intercourse (R v Pay (1999) NSWCCA 40 [7]) unwanted, forced intrusion into the privacy, indeed intimacy of a complainant’s body and psyche against her will by use of physical power and callous disregard for her wishes or feelings, marks the essence of the criminality of these offences.
While there are three episodes described as sexual intercourse, the most serious of the three is the penile-vaginal penetration of the complainant. I am satisfied the accused lured the complainant to his apartment with a view to having penile-vaginal intercourse with her. His conduct immediately upon their arrival of preparing drinks and putting on a video are inconsistent with an intent that the two would stay at the premises longer than a mere ten minutes. However, I cannot be satisfied he formed any criminal intent until she declined to return her hugging of him.
His picking her up and refusal to put her down can only be consistent with an intent to have his way with her whether she consented or not. Once she began to say no, his criminal intent hardened to having sex with her accepting that she would not be consenting.
He did not spend much time seeking to persuade her. Four times she had refused his advances. Thereafter he used his superior physical power, her isolation from all the world save him, and ultimately a level of significant physical violence or threatened violence to achieve his sexual satisfaction.
The Crown puts this offence as above the mid-range of seriousness. The defence argue it falls just short. This issue is important for it will determine whether this offence attracts a standard non-parole period.
The trigger for the requirement to impose a standard non-parole period is the determination that the offence is in “the middle of the range of objective seriousness” for the particular offence. (R v Dean (2006) NSWCCA 341 at [76] per Grove J at 76, Bell J agreeing).
Section 54A(2) of the Crimes (Sentencing Procedure) Act (the Act) defines the standard non-parole period as representing the non-parole period for an offence in the middle of the range of objective seriousness for offences in the table. The jurisprudence establishes that the middle point is the mid-range of seriousness after trial. (R v Way (2004) 60 NSWLR 168).
What matters need to be assessed to determine whether this offence falls within the mid-range of seriousness?
“The multiplicity of purposes of sentencing set out in s 3A of the Act (Crimes (Sentencing Procedure) Act) quoted above do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as ‘objective’ facts and matters which may affect the judgment involving the - in assessing the ‘seriousness’.
It is too narrow a perspective to confine attention to the physical acts of the offender and their effects as those acts or effects should be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct and those factors that might properly have been said to have impinged on the mens rea of the offender ... Way at [85] ...
In an assessment of the objective seriousness of the subject offence, it seems to us that attention must accordingly be given to factors mentioned above. Some of these relevant factors will be elements of the offence itself, others will fall within the list of aggravating and mitigating factors referred to in s 21A(2) and (3) of the Act so far as they relate to purely objective considerations ...
Prior to the enactment of legislation of the kind which is to be seen in Division 1A of Part 4, it was probably not necessary for any strict line to be drawn between matters which related to the offence and to the offender respectively, since the focus was placed upon the question of setting a sentence that reflected the overall criminal culpability involved.
The position has now changed in relation to sentencing with respect to offences for which standard non-parole periods have been set insofar as there needs to be an examination of the level of objective seriousness involved in the offence in which considerations that do not have a nexus with its commission are to be placed to one side.
Before parting from this aspect of the Division, we observe that we do not consider that a mid-range offence should be regarded as one that is necessarily ‘typical’ of those that are charged under the relevant provision, nor do we consider that the mid-range for the offence should be assumed to occupy a relatively narrow band within the continuum between the least serious instance and the worst category of cases [Way ante at [98]-[100]] ...”
To the extent if it be the case that Tobias JA with whom Grove J and Bell J, as she then was, agreed, said something to the contrary in R v Dean, I prefer the approach of the court in Way which focused specifically on the application of s 21A and s 54B. That task required close attention to the interpretation of the provisions of s 54A and s 54B. I make this observation because the Crown, as I recall, sought to rely upon Dean.
“It is important to note that in s 21A factors are not confined to those that are specifically identified in s 21A(2) and (3) and that s 54B(3) is not to be read down as restricting consideration to those factors. This arises from the fact that s 21A(1) specifically requires the court to take into account in addition to the aggravating and mitigating factors referred to in those subsections:
‘(c) Any other objective or subjective factor that affects the relative seriousness of the offence’ (emphasis added),

and from the fact that it goes on to say:

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law’.”

Identification of matters that fall within the mid-range of seriousness can be confined to matters, which are directly or causally related to its commission and effect. R v AJP (2004) NSWCCA 434 (a decision of the New South Wales Court of Criminal Appeal) also deals with assessing objective criminality. I draw from that case the following propositions.

•That the fact that an offence is an isolated incident is not irrelevant to its evaluation for purposes of assessing whether it is in the mid-range.
•Where an offence is defined in the statute to include several categories of conduct, the heinousness of the conduct in a particular case depends not upon the statute defining the offence or the particular category of conduct, but upon the facts of the case of which the nature of intercourse will be but one factor that will determine the seriousness of the offence.
•While penile-vaginal penetration may well be more serious than forced fellatio, it does not mean that fellatio must necessary fall below the mid-point of seriousness.
•Section 21A matters of aggravation will be matters that may lift a matter to or beyond the mid-point of seriousness.
•Other matters that may impact upon objective seriousness include how the offence took place; the span of time over which an offence occurred; the degree of force or coercion applied to the complainant; the use of threats before or after the criminal intercourse to ensure compliance with demands made and/or subsequent silence; the level of physical and other harm done to the complainant.

Of the three offences, I repeat the most serious is the penile-vaginal intercourse. I am satisfied neither count 1 nor count 2 falls in the mid-range of seriousness, nor in assessing the mid-range of seriousness of count 3 do I apply the principle of totality.
Count 3 must be assessed standing alone. That, however, is not to say that consideration of its subjective [sic; read “objective] criminality ignores the background events including the commission of the two earlier offences as precursory action leading towards the penile-vaginal intercourse.
The objective circumstances of this offence including taking advantage of the complainant when she was isolated, persisting in his sexual advances in circumstances where he had been rejected and the complainant subsequently had made manifest her fear by screaming.
He relied on his physical force on four occasions to demonstrate his power over her and his determination to have penile-vaginal intercourse. These included carrying her to the bedroom, holding her hands above her head whilst she was on the bed, placing one hand on her throat and the other on her mouth when she was screaming, and the right side of her face was slapped.
There were a number of threats made by him of applying force when he raised his hand as though to slap.
He denied her the opportunity to attend the toilet despite her repeated requests so to do. He undressed her. He persisted in penile-vaginal intercourse notwithstanding she had not consented to and had been humiliated by his digital penetration of her. He also required her to touch his penis prior to penetration.
His purpose in pursuing the penile-vaginal intercourse was his own sexual gratification.
I have considered whether the evidence discloses that his sexual gratification was stimulated or heightened by the aggression he demonstrated towards her. The evidence, however, points to him finding the complainant an attractive lady and desiring her upon that basis.
In addition to the actual physical violence, there were also threats of physical violence, which I just mentioned. These occurred on a number of occasions when he raised his hand as though to strike the complainant but did not do so as she submitted to him.
The Crown sought to argue there was pre-planning. While there was persistent pursuit of the complainant from when the accused first saw her at the Town Hall bus stop, there is nothing in the evidence which points towards forced sexual intercourse without consent as being ever in his mind prior to his lifting her from the couch. His criminal conduct appears to begin shortly after this exchange between them.
Accused: “I like you. Do you have a boyfriend?” or words to similar that effect.

Complainant: “No, I don’t have and I don’t want boyfriend.”

It may be the accused regarded this as a rejection of his advances. If not, her folding of her arms across her chest when he asked her to hug her back must surely have been a message of rejection to him.
I do not need to decide what prompted the change in attitude, but the evidence does point towards the offence being opportunistic in circumstances where the accused’s advances for consensual connection were being repulsed. It was, at some point whilst the complainant was still on the sofa, that the accused determined to have penile intercourse with her even though she had indicated no interest.
It should also be noted he wore a condom. I am satisfied his decision to wear a condom was based upon his own desire for safety, perhaps a desire to be spared the consequences of fatherhood, and as a step in avoiding detection. Nonetheless the consequences of so doing were that it relieved the complainant to some extent worrying about sexually transmitted diseases, pregnancy, and spared her the humiliation of receiving his sperm into her womb.
Although there was physical violence and aggression, it did not descend into bondage, sadomasochism or some fetish capable of further aggravating the complainant’s humiliation, pain and distress. Nor was there what might be described as gratuitous violence.
Physical injury occasioned would appear to have been limited to pain, a bruising around the neck and perhaps some marks on the cheek.
No threats were administered before or after the sexual episode, if one regards the sexual episode as beginning on the bed. There does not appear to be any long-term physical injury arising to the complainant.
The span of time over which this offence occupied can properly be measured in minutes rather than any other currency.
It is possible to have sexual intercourse without consent without the administration of violence over and above the (violence of non-consensual) penetration of the complainant. The level of additional bodily force over and above the act of penetration in rape cases varies considerably.
I am satisfied that violence at the upper end of the spectrum would be caught by s 21A(2)(b) as a matter of aggravation. I am also satisfied that gratuitous violence would also constitute a s 21A(2)(b) aggravation. My concern is whether violence being administered to accomplish the element of submission or compliance in the absence of consent constitutes an aggravating feature picked up by s 21A(2).
The level of additional violence, whilst reprehensible, in this case was targeted by the accused to achieving the complainant’s compliance to his having sexual intercourse without her consent. It is closely aligned to an essential element of the offence.
While there is greater violence in some other cases, the violence in this case really impacts upon the criminality associated with the essential element rather than a discrete aggravating feature of the offence. The measure of the criminality of the essential element of the offence of having intercourse without consent is the level of violence he administered to achieve that end. It is not as though the violence has not aggravated the offence. It is a question of the mechanism by which the violence comes to be measured as part of the objective seriousness. In my view, it is part of the element in this case.
The victim was an adult female student. While it is acknowledged she was isolated when sexually assaulted, she does not otherwise present as a vulnerable victim. There is no suggestion that the accused sought to take advantage of her by plying her with alcohol or drugs. While the injury and emotional impact were significant, sexual assault offences of this kind are inherently damaging to body, emotion and psyche.
To her credit, the complainant seemed relatively composed after the event. She had the presence of mind to take the registration number of the offender’s vehicle, make her way to Parramatta station, call her older sister in China, listen to and take her advice.
On its objective circumstances, I come to a view that the offence is one that falls within the mid-range of seriousness. Accepting that the concept of mid-range of seriousness is not a pinpoint but a range or a band, this offence falls within the lower half of that band.
Victim Impact Statement
I have received a victim impact statement. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement, I recognise they are not the opinions of a qualified expert.
The victim impact statement, coming as it does from the primary victim, may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effects upon her. I indicate I do accept it as reliable.
The function of statements such as this one is, firstly, to give to the victims the opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender. Secondly, to enable the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at least hearing at firsthand and perhaps gaining an insight into the impact his offending conduct had upon his victim. Finally, a victim impact statement ensures the Court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are its victims. As such, the victim impact statement plays a very important part in the administration of criminal justice.
This statement is dated 28 April 2008. The complainant says:
“I suffered sexual assault on 6 February 2007. This resulted in some psychological problems. It also affected my life seriously. Since the assault I generally don’t feel safe around men. I have been very upset about what occurred and this has affected me in the way I view men. I feel scared when I am with a man.
I have had feelings of suicide from time to time because I trusted people including Anthony (John Rad) but after the incident I have a very low level of trust now.
I had nightmares a few weeks after the incident. I was always sleepless in the midnight and thinking about what had happened. Not enough sleeping affected my studying and work.
I was unable to concentrate on my studying after the incident. I didn’t fail any subject in the previous two years studying. I was a credit student. But after the incident I failed one subject so I have to study five subjects in this semester otherwise I can’t graduate in two years. It makes me take more study pressure.
I couldn’t do my part-time job after the incident about one or two months. I had to quit. It is hard for me to share this incident with my parents and friends. I had to deal with my feelings on my own. I was [in] depression for a long time. Since this incident happened I think - I almost think of it every day in one year.”

Subjective Factors

I now turn to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offences, but I am also sentencing this offender for them. Each offender coming before the court varies from other offenders who stand or who stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of these offences by this man or some reason why more or less sentencing outcome is appropriate.
Background, Family, Relationships
John Rad, born in April of 1967, is the youngest of nine children. His parents separated when he was aged two. His early life was lived in Iran. His father, after the separation, moved to France. His mother remarried when he was aged six or so.
The family he lived in was caring and close. The family was Kurdish living in the mountains and plateau regions of north western Iran.
Members of the family were outspoken and found themselves in conflict with authorities because of their political views.
The family has now dispersed to some extent. Two siblings reside in Sweden, six remain in Iran and the offender is in Australia. His stepfather and mother have both passed away, his mother passing last year.
Rad, then a member of the Communist party, found himself incarcerated aged twenty-one for three years on account of his political views and activities.
Shortly after his release at the age of twenty-four he married. The year was 1992. A son was born to this union.
Early in the marriage in 1994 he, his wife and then one year old child, escaped to Turkey. They were seeking refugee status. His wife and son were separated from him and failed to make, as I understand it, the United Nations’ compound. They were returned to Turkey. The accused, however, secured refugee status and arrived in Sydney in 1994 as a political refugee.
His wife has since divorced him. The son is now aged sixteen or seventeen. The offender has sought to assist the son flee Iran with a view to joining the father in Australia but thus far without success.
In 2003 he married a Chinese lady. That relationship had finished some six months before his offending conduct.
A consequence of this conviction is a review of his suitability to continue by the Department of Immigration as a sponsor for his son to migrate to Australia.
Education, Skills, Employment
Rad finished high school in Iran reaching Higher School Certificate equivalency. He then completed first year of an accounting course.
In Australia, he initially found employment in pastry cooking, subsequently in a bakery. More recently, as I understand it, at the time of the offence, as a food process worker with Crafty Chef. He has worked there full-time since March of 2003 on an annual salary of about $34,000.
I am satisfied since his arrival in Australia the offender has held regular employment in semi-skilled positions. He is presently dabbling in courses offered in custody, but thus far does not appear to have committed to any. That may be because to date he has been a remand prisoner.
General Health
John Rad presents as so far as one can tell from appearances, a fit forty year old, slim, wiry built man in general good health.

Mental Health Issues

In evidence he claimed he was depressed but has not been taking any medication. No doubt his custodial situation, his impediments in being able to sponsor his son and his son’s welfare are all matters contributing to his feeling down.
There is no professional assessment before me. I note also he has no relatives in Australia. He claims no-one is visiting him in custody. I accept he must feel isolated from the outside world.
Psychosexual Profile
After interviewing him, Forensic Psychological Services assessment comments that the accused spent significant time grooming the victim, then applied significant force to obtain compliance and engaged in abusive and demeaning language towards the victim.
I cannot be satisfied beyond reasonable doubt that the offender’s conduct prior to the complainant’s rejection of him was conduct of malicious intent. On one view it may well be described as grooming in the sense that he was seeking a relationship with her, but I reject the proposition that it was grooming for the purposes of having sexual intercourse without consent.
His last partner had been Chinese. He had been parted from her for some six months, although there may have been some intermittent contact in that time.
His initial approach towards the complainant in his unit was consistent with seeking consensual sex. Even immediately after the rejection, he persisted with ardour rather than aggression. When it was even more clear that his ardour was unwelcome, his conduct changed to the criminal.
There is no doubt his language thereafter became abusive and demeaning, even after the intercourse had finished. One cannot rule out that language and attitude occurs because of his frustration, sense of impotence and anger at being rejected.
I am inclined to regard his interest in the complainant as genuine. He called her a couple of days later to apologise. I do not rule out that that apology was seeking to mend fences. On the other hand, one cannot rule out that the accused was also attempting, or perhaps simply attempting, to manipulate the complainant, because by the time the apology was made, she had complained to the police, their investigation was on foot, a fact likely to have been well known by the offender.
Accepting as I must the jury verdict, the offender’s continual denials of sexual assault must be regarded as evidence of denying criminality and lacking insight into the antisocial character of his behaviour.
The offender’s position is, “I have no problem, I am not sick.” Even on a view most favourable to the accused, he did have a genuine rather than predatory interest in the complainant. His conduct towards her was callous, uncaring, egocentric lust, devaluating the importance of the relationship in sexual connection and demeaning of the role of women in sex and generally.
On this basis I am satisfied there is a need for treatment. I intend to recommend he be considered for acceptance into the CUBIT sex offenders programme. He indicates in evidence a present willingness to attend, even though he claims he does not need the treatment.
Custody
He was arrested at Sydney Airport on 25 July 2007 and has been in custody since that time. He was arrested on his return from Canada. The offender has been in custody in Canada. That custody in Canada may have related to his status in Canada.
His flight from Australia was relied upon by the prosecution as consciousness of guilt. Had he not fled Australia on that basis, his custody in Canada would not have occurred. I am prepared to regard there being a sufficient nexus between his custody and his offending conduct to take it into account when setting the sentence.
His evidence was that he had been in custody for some three months in Canada. I have been informed and am prepared to accept that police in Australia were notified on 28 May 2007, that is, two months prior to his arrest in Sydney, that he had arrived in Canada and was, I think, being detained. But on any view, he was detained at the time of his arrival.
I am intending to backdate the sentences I give to 28 May 2007 on that basis.
Without gaol visits, his custody will isolate him from the outside world much more than would happen if he had a network of family and friends in Sydney.
Aged forty, he is also well over the median age of offenders, another feature that may contribute to him being isolated somewhat whilst he is in custody.
During his time in custody, he has been employed at CSI Textiles as head sweeper.
Character and Criminal History
This offender is a divorced person with a good employment ethic. His early adult life saw him in political conflict with an authoritarian regime. In the course of fleeing the regime he lost his first wife and son to the regime. Without family or other support in Australia, he made his way. He has sought for some time now to reunite with his son.
He has been before the Local Courts on four occasions and should have been before the Local Court on five in relation to driving offences and possessing a prohibited weapon without a permit.

For the prohibited weapon charge he was fined $200.
There are no offences of a kind suggesting any longstanding problem with violence or sexual issues.
I regard his record as one entitling him to some leniency. I do not regard his periods of incarceration in Iran as disenabling him to claim good character.
The totality of his criminality that has thus far been dealt with has been covered by fines amounting in total to $2,000.
There are still two outstanding matters, one of which will be finalised today and another for which he has been convicted but not yet finalised - that is, convicted and a s 25(2) warrant to issue - both of those relating to driving whilst disqualified.
For the purposes of sentencing for this offence, I regard him as generally a person of good character.
Attitude to the Offence
This is a matter I dealt with in part under the heading Psychosexual Issues. Whatever purpose the accused pursued through the initial apology, events have now superseded it. The account he gave in evidence was false and unfair to the complainant. He is not to be punished for running his trial, but issues raised in his defence are appropriate matters to have regard to when assessing his attitude to the offence.
Rehabilitation Prospects
I would assess the offender’s rehabilitation prospects as relatively positive.

• He has remained crime-free, at least of offences of violence and drugs, for nearly forty years but for the Local Court matters that I have referred to.

• In particular, there is no history of violence or sex offences.

• He has a strong work ethic and employment skills in semi-skilled areas.

• He has used his time in custody sensibly and has started to focus on post-release life choices.

• He has expressed willingness to attend the CUBIT programme.

• Although his family is not in Australia, he looks to them for support.

• Good physical health, an absence of drug and alcohol issues and some focus on post-release life.

Negative factors are also to be considered. There are two significant negative factors: his unwillingness to confront publicly his criminal offending and his lack of social network in Australia.
Hopefully the proposed treatment programme will address the first of these negative factors.

Standard Non-Parole

Is this a case calling for the standard non-parole period? I have already assessed the objective criminality as placing his offence in the lower half of the band of cases falling within the mid-range of seriousness.
Subsections (2) and (3) of s 54B provide limited scope for a judge to set a parole period other than a standard non-parole period for an offence falling within the mid-range of seriousness.
The reasons for which it may set a shorter than standard non-parole period are to be found in only s 21A of the Act (Crimes (Sentencing Procedure) Act 1989).
The impact of s 21A(3) upon a standard non-parole period was demonstrated in Way’s case:
“Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial. This follows from the fact that factor (k) being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify departure from the standard non-parole is ‘a plea of guilty’ by the offender (as provided by s 22A). A plea of not guilty can never be an aggravating factor.”
I am not suggesting other mitigating factors found in s 21A would necessarily carry as much value as a plea of guilty. All I seek to do is to note the impact s 21A(3)(k) had in Way’s case.
On the material before me, favourable findings have been made which can be expressed in terms of s 21A(3):
“(b) The offence was not part of a planned or organised criminal activity.
(e) The offender does not have any record (or any significant record) of previous convictions.
(f) The offender was a person of good character.
(g) The offender is unlikely to re-offend.
My prediction as to the likelihood of the offender re-offending was expressed more cautiously than s 21A(3)(g) phrases it. His rehabilitation prospects are promising. Predicting future offending is notoriously unreliable, nonetheless it seems to me he is capable of coming within (g).
Is the offender a person of good character? True there are convictions, some of them relating to disqualified driving and two of them within days of this offence. But for the purposes of this offence, in my view he can nonetheless be regarded as a person of good character at the time of his offending. While other minds may differ, at least in the early part of driving offences there would be many people who the community would regard as people of good character who would be scarred with driving convictions, even driving whilst disqualified.
Factors (b) and (e) express precisely findings made by me with particular reliance upon these two and having also given weight to (f) and (g) I have determined that this is an offence where a shorter non-parole period can be set, even though it falls within the mid-range of seriousness.
“... it is clear that the legislative policy in introducing Division 1A so far as that can be discerned from the legislation itself was not to create a straightjacket for judges, since s 54B(2) does permit reference to be made to a range of circumstances that would justify departure from the standard non-parole period. If reference to the second reading speech were necessary for that conclusion, it may be noted that the Attorney General specifically observed that the amendments were not introduced as a form of mandatory sentencing but were rather intended to provide ‘further guidance and structure to judicial discretion’” ... Way para 59.
Having determined that a shorter non-parole period is appropriate, I still must bear in mind the very existence of Division 1A of Part 4 requires me to regard the standard non-parole period as a bench mark. Indeed, in this case, it must be a point of reference because the non-parole period that I am setting is to be shorter than the otherwise prescribed standard non-parole period of seven years.
Setting the Sentence
In modern Australian society there is a very extensive raft of criminal laws passed by Federal and State Parliaments. The chief purpose of the criminal law put in place by Parliaments is to deter those tempted to breach the provisions of the laws. Parliament does that by prescribing maximum penalties for those engaged in conduct prohibited by the criminal law. In a moment I will refer to the maximum penalty for these offences.
Consequently when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind the general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalties available and their deterrent purpose when passing sentence.
There is also a specific deterrence aimed at individuals likeminded to the offender who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being punished.
Finally, there is a component of deterrence to be considered personal to the offender with a view to reminding him not to and persuading him not to re-offend.
The maximum penalty for these offences is one of fourteen years imprisonment with a standard non-parole period of seven years.
Concurrent Sentences
There are three counts requiring sentence. All counts relate to the same incident occurring in the accused’s flat. There would have been moments between each of them. The entire period of offending would be measured in minutes, as I said, rather than any other currency.
In these circumstances, it is appropriate that all sentences be concurrent. However, the sentence for the penile-vaginal intercourse, count 3, will be required to reflect the totality of criminality assessed in this criminal offending.
When the objective seriousness of the offence and the subjective matters are taken into account, I have determined that an overall sentence of eight years is appropriate.
I have determined that there are special circumstances to be found:
•   It is the offender’s first time in custody.
•   For reasons I have given, incarceration will be more isolating for him than for other prisoners, thereby making his imprisonment more arduous.
•   It is likely his capacity to advance his son’s prospects of fleeing Iran and migrating to Australia while he remains with prisoner status will be impeded. That will also make his custody more arduous.
•   His willingness to undertake the CUBIT programme is likely to be enhanced with prospects of an earlier than later release date. That is to say, if his release is not automatic - as indeed it will not be in this case - he will seek, hopefully, to persuade the Parole Board of his fitness to be released by early completion of the CUBIT programme.
In the circumstances, I have determined upon a non-parole period of five years.
Would you stand up please Mr Rad? Mr Rad, for the offence - these are all in the same term but the first two relate to the digital penetration.
On 6 February 2007 at Parramatta, you had sexual intercourse with Yuan Yaun Xing without her consent, knowing that she was not consenting to the sexual intercourse. For that offence you are convicted and you are sentenced to a fixed term of three years imprisonment to date from 25 May 2007 and to expire on 24 May 2010.
Likewise for the offence in the same terms, you are convicted and sentenced to a fixed term of three years to date from 25 May 2007.
For the third offence, which is the vaginal-penile intercourse offence that you committed, namely, you did have sexual intercourse with Yuan Yaun Xing without her consent, knowing that she was not consenting to that sexual intercourse, you are convicted. For that offence I set a non-parole period of five years to commence on 25 May 2007 and to expire on 24 May 2012.
I set an additional term of three years to expire on 24 May 2015.

Would you sit down please? I want you to understand what I have just done. Effectively you have a non-parole period of five years dating from 25 May when I have assumed you were arrested by the Canadian Immigration authorities, and your earliest release date is 24 May 2010 (as said). You will have to make an application to the Parole Board. You will have to convince the Parole Board that you are suitable to be released. One of the factors they will take into account is the likelihood that you will re-offend. To convince them that you would not re-offend, my advice to you - and that is all I can give you - is that you would do the CUBIT programme and present them with that evidence of completing the programme.

For the offence of driving whilst disqualified on 6 February, pursuant to s 166 of the Criminal Procedure Act, I am entitled to sentence you, and I shall sentence you to a period of three months imprisonment to date from today, 11 July 2008, and to expire on 10 October 2008.
Any other matter, Madam Crown?

DALEO: Your Honour did say to the offender his earliest release date was 24 May 2010. I think that was a slip of the tongue, your Honour meant 2012, the five year standard non-parole period.

HIS HONOUR: All right. I disqualify you from holding any licence under the Motor Traffic Acts for a period of two years cumulative upon any disqualification period you are currently serving.

LAST UPDATED:
30 November 2011