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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rad, John

Details

AGLC: R v Rad, John [2008] NSWDC 286
Case: [2008] NSWDC 286
Decision Date: 11 July 2008

CaseChat Overview and Summary

The case of R v Rad, John involved a defendant convicted of three counts of sexual intercourse without consent, as well as a charge of driving while disqualified. The matter was heard in the Supreme Court of New South Wales. The primary legal issues before the court were the appropriate sentencing for the sexual offences, particularly in light of the absence of contrition and the moderate objective seriousness of the offences, and the determination of a non-parole period considering the personal circumstances of the offender.

In addressing these issues, the court considered the subjective factors related to the offender's background, family, relationships, education, skills, employment, and general health. The offender, a 40-year-old refugee from Iran with a history of political activism, had limited opportunities for education and employment prior to arriving in Australia. Despite these challenges, he had maintained steady employment since his arrival and was recommended for a rehabilitation program. However, the court noted the lack of remorse and the moderate objective seriousness of the sexual offences. The court ultimately determined that the circumstances of the case warranted a sentence outside the standard non-parole period, taking into account the offender's fair rehabilitation prospects and the potential for reintegration into society.

The court sentenced the offender to a fixed term of three years imprisonment for each of the first two counts of sexual intercourse without consent, with the sentences to run concurrently. For the third count, the court imposed a non-parole period of five years, with an additional term of three years, to be served consecutively, resulting in a total sentence of eight years imprisonment. This decision reflects the court's consideration of both the severity of the offences and the personal circumstances of the offender.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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