R v Rahman

[2019] NSWDC 173

District Court

New South Wales

Medium Neutral Citation:	R v Rahman [2019] NSWDC 173
Hearing dates:	6 February 2019
Decision date:	06 February 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to a term of imprisonment of 6 years with a non parole period of 4 years 6 months.
Catchwords:	CRIMINAL LAW - sexual intercourse without consent.
Legislation Cited:	Crimes Act 1900 (NSW), s.61I
Category:	Sentence
Parties:	Regina (Crown) Maksudur Rahman (Offender)
Representation:	Mr Clayton (ODPP)   Mr Snelling (Counsel)
File Number(s):	2018/29027
Publication restriction:	Non publication order made of the name of the victim and any other information which might directly or indirectly identify her

Judgment

1. Masudur Rahman, you appear for sentence today in relation to one principal offence, that is, sexual intercourse without consent.

2. This involves a contravention of s 61I of the Crimes Act. The maximum penalty for the offence that you have committed is 14 years imprisonment. There is a standard non-parole period of 7 years imprisonment.

3. In addition to that principal offence, you have asked me to take into account a matter of sexual intercourse without consent which has been included on a Form 1, which I have certified.    

4. The circumstances surrounding the principal offence, and the matter on the Form 1, are contained in a statement of agreed facts, which you have signed. Slightly recast by me as to style, but not substance, the facts are as follows.   

5. In January 2018 you were working as a kitchen hand in a restaurant in the inner city of Sydney. You were aged 36 years at the time. Also working in that restaurant was a visitor to this country, a young woman who was aged 24 years, who came here from Holland. She was here on a working holiday visa.

6. On the evening of 27 January 2018, you and she were working the evening shift at that restaurant.

7. At the end of the shift, you and she and other workers were relaxing and drinking alcohol. The victim of these offences became quite intoxicated.

8. You also became intoxicated. You have told me today, and I accept, that your experience with alcohol (as at that time) was relatively new. You had only been drinking for a couple of years. That may have had something to do with the fact that you were born in Bangladesh where I can take judicial notice of the fact that the consumption of alcohol is certainly not encouraged.

9. In any event, in the early hours of the morning on the Sunday, about 3.30, all but four of the workers from the restaurant had gone home. You and the victim and two other workers remained. Then those other two left - and it was just you and the victim.

10. She wanted to go home. She wanted to get an Uber. You, however, decided that she would go back to your place and you pressured her to do so. She was very reluctant, but her resistance was considerably reduced by the alcohol she had drunk. You were persistent and you eventually persuaded her to travel to your place which was a communal house in Strathfield, which was converted into a number of individual rooms for the use of the individual unit occupiers.   

11. There were two house rules of particular relevance. One house rule was that nobody other than a resident was permitted in the premises. The second house rule was that there was to be no sexual intercourse on the premises - presumably, by reference to the first, that must have meant between house occupants.

12. You took the victim to your room. She offered to sleep on your couch, but you said "no". She was left in the bedroom. She took off her shoes and sat on your bed and then she fell asleep. She woke to you taking off her socks and lifting her onto the bed. You were kissing her. She was not fully awake and she was confused, but she was not that confused to prevent her saying “no.” She said “no” repeatedly, but that did not discourage you from continuing what you were doing. You continued to kiss her and you took all of her clothes off. She was so disoriented she closed her eyes and tried to fall back to sleep.

13. Whilst she was in this disoriented and confused state, you forcefully (and whilst she was saying “no”) committed cunnilingus upon her. In this country, that is sexual intercourse. She kept saying “no” and you kept doing it.

14. It is that particular form of sexual intercourse which is the matter on the Form 1, and it will significantly increase the sentence.   

15. You eventually had penile vaginal intercourse with her. It was forced on her. She was not consenting to it. It was very painful to her. She does not know how long it went on for because of her intoxication.

16. When you finished, you remained in the bedroom and she went to sleep.

17. Later on in the morning when she woke, she was completely naked. She was horrified at what had happened to her and she dressed and fled.    

18. Although you inflicted yourself on her in the manner I have described, unlike many other acts of sexual intercourse of this type, you did not use overt violence on her. You did not strike her. You did not use a weapon. You did not do many of the things which the Court regrettably has seen. But you did use some force to force yourself on her, and, it would seem, you used a condom.

19. It is that penile/vaginal intercourse which constitutes the principal offence of sexual intercourse without consent. In terms of its objective seriousness for an offence of its kind, it is slightly below the middle of the range.

20. The Court has been provided with a victim impact statement by the young lady concerned. It is clear that the experience - even though she was disoriented at the time it occurred - has subsequently had a very significant and adverse impact on her. She is suffering many inhibitions in her life. She is, even now, still suffering from nightmares, and still requiring weekly counselling. Her social relationships with men in particular have been severely compromised. She is suffering from Post-Traumatic Stress Disorder. That being said, it is not a reaction unusual for this type of offence.   

21. You are now 38 years old.

22. You are a mature man and you were mature when you did this.

23. You were born, as I have said, in Bangladesh.

24. Your father was in the Army. He retired from that service and he then operated a transport business.

25. You were brought up in a loving and supportive family.

26. You are an intelligent person. You completed a Master’s Degree in Accounting in Bangladesh. You even held the position of an accounts manager with Toyota in Bangladesh.

27. There is nothing in your background, nothing at all, to explain or excuse what you have done to this girl. There is some reference to some sexual abuse occurring when you were 18 (if that be described as abuse) but there is no causal connection between that fact and your offending. There is nothing in your background to explain what you did. You, an intelligent, mature person, adversely affected by alcohol, who took advantage of the situation which presented itself to you and you were a sexual predator on this occasion.

28. You have expressed remorse. I believe your remorse is genuine.

29. I think your prospects of rehabilitation are quite reasonable. I do not think you will re-offend. This was an opportunistic attack which I think was out of character for you and unlikely to be repeated.

30. You have no other criminal offences in this country or in Bangladesh.

31. There are no relevant physical or intellectual disabilities; nor mental illnesses.    

32. You pleaded guilty at an early opportunity and consequently you are entitled to a 25% discount for your plea.

33. You were arrested on 29 January 2018 and you have been held in custody since that date. The sentence that will be imposed will be backdated to that date.

34. No sentence other than a period of imprisonment is appropriate.

35. Whilst I have formed a favourable view of your prospects of rehabilitation, thereby reducing the importance of specific deterrence (that is, encouraging an offender not to re-offend himself), considerations of general deterrence (that is sending a message to discourage others from doing what you have done) remains a significant consideration for the Court.   

36. I have considered whether I should vary the ratio of the non-parole period (that is, the mandatory term that you must serve) to the head sentence. In this context, I have taken into account that when you came to Australia, you came on a spousal visa to accompany your second wife, who is an Australian citizen. That marriage has failed - as did your first when you were married and living in Bangladesh. You have no children and it would seem you have no significant community support. Notwithstanding those matters, because of your age and the seriousness of the offending, I decline to make a finding of special circumstances. Therefore, the non-parole period will be the statutory 75% of the head sentence; and that head sentence, which I will soon impose, has been increased to take into account the seriousness of the matter on the Form 1.   

37. Maksudur Rahman of the offence of sexual intercourse without consent, you are convicted. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 8 years. Because of the plea, and the discount, the term of imprisonment is 6 years.

38. I fix a non-parole period of 4 years 6 months to date from 29 January 2018 and which will expire on 28 July 2022.

39. I fix a balance of 18 months to date from 29 July 2022 and which will expire on 28 January 2024.

40. Whether you are admitted to parole will be a matter entirely for the Parole Board.

41. You may now go with the officers.

Decision last updated: 14 May 2019