R v Zhao

[2018] NSWDC 449

District Court

New South Wales

Medium Neutral Citation:	R v Zhao [2018] NSWDC 449
Hearing dates:	19 September 2018
Date of orders:	12 October 2018
Decision date:	12 October 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [140]
Catchwords:	CRIME – SENTENCE – guilty plea – assault with act of indecency – Form 1 matters – whether the complainant contributing to offending by placing herself in a position of vulnerability
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Aslan V R [2014] NSWCCA 114 Barbaro v R; Zirilli v R (2014) 253 CLR 58 Baines v R [2016] NSWCCA 132 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Knight v R [2015] NSWCCA 222 Muldrock v The Queen (2011) 244 CLR 120 R v Cortese [2013] NSWCCA 148 R v Daley [2010] NSWCCA 223 R v Einfeld [2010] NSWCCA 87 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Hibberd [2009] NSWCCA 20 R v Israil [2002] NSWCCA 255 R v King (Court of Criminal Appeal, 18 July 1991, unrep) R v Kwon [2004] NSWCCA 456 R v Mirzaee [2004] NSWCCA 315 R v MJR (2002) 54 NSWLR 368 R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep) R v Rivkin (2003) 45 A Crim R 366 R v Schneider [2016] VSCA 76 R v Van Hong Pham [2005] NSWCCA 94 R v Van Xuan Nguyen [2005] NSWSC 600 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 Shrestha v The Queen (1991) 173 CLR 48 The Queen v Pham (2015) 256 CLR 550 Veen v The Queen (No 2) (1988) 164 CLR 465 Xiao v R [2018] NSWCCA 4 Yow v R [2010] NSWCCA 251
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Guanjie Zhao (Offender)
Representation:	Counsel: Mr J Tunks (Crown) Mr M Ramage QC (Offender)   Solicitors: ODPP (Crown) Sydney Criminal Lawyers (Offender)
File Number(s):	2017/84213
Publication restriction:	Non-Publication of Complainant’s Name

REMARKS ON SENTENCE

INTRODUCTION

1. In this matter the Offender appears for sentence in relation to the matter referred to in the Crown Sentence Summary (Exhibit A), that is assault with an act of indecency in contravention of s 61L of the Crimes Act 1900. That offence carries a maximum penalty of imprisonment of five years.

2. There is also a Form 1 which contains two charges which I have taken into account in determining the appropriate sentence in this case. Those charges are a further assault with an act of indecency in contravention of s 61L of the Crimes Act, which carries a maximum penalty of five years imprisonment and secondly, a charge of common assault in breach of s 61 of the Crimes Act, which carries a maximum term of imprisonment of two years. The Form 1 has previously been signed by the parties and I have certified that I have taken it into account in determining the appropriate sentence in relation to this matter.

GUIDEPOSTS

3. In determining an appropriate sentence it is of course necessary to have regard to the seriousness of the offending. An indicator of that is what is referred to as the ‘guidepost’, being the legislature’s assessment of the seriousness of the offending by reference to the maximum applicable term of imprisonment. I have already referred to the maximum penalties applicable both in relation to the primary offence but also in relation to the Form 1 matters. It is of note that one of the Form 1 matters is a charge under the same section of the Crimes Act as the principal offence and carries the same penalty.

FORM 1

4. The Offender has requested that in sentencing him on the principal charge the Court take into account the further offences to which the offender has been charged but not convicted. The offender has admitted guilt in relation to those offences. The charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so be giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence and the second is the community entitlement to extract retribution for offences of this type.

5. As indicated the parties have signed the Form 1 document and I have certified the document indicating that I have taken it into account in this sentence.

procedural history

6. The offending was committed on 18 March 2017, on which date the Offender was arrested and charged.

7. On 13 December 2017, the Offender was committed for trial in the District Court.

8. The Offender pleaded guilty to the charges on 9 August 2018, four days after the trial was scheduled to commence, that being a relatively late stage of the proceedings and that will be taken into account in assessing the value of the guilty plea.

9. The Offender has been on bail since the time of offending.

the evidence on sentence

10. The Crown relied upon the following material at the sentence hearing:

1. the Crown Bundle (Exhibit A);

2. a Victim Impact Statement (Exhibit B); and

3. Submissions on Sentence (MFI 1).

11. The Offender relied upon the following material:

1. the Offender’s Bundle (Exhibit 1);

2. an extract from the police officer’s notebook (Exhibit 2);

3. Submissions on Sentence (MFI 2); and

4. Sentencing Statistics (MFI 3).

the agreed facts

12. The Statement of Agreed Facts provides as follows:

13. The offender, Mr Guanjie ZHAO was 24 years old as at 18 March 2017. The complainant, XX was 25 years old.

14. In about February 2017, the complainant met a woman identified by the initials ‘KL’ and the two became friends on a Chinese social media app called WeChat. The Offender was also a friend of KL and were introduced to one another via the WeChat platform.

15. The Offender and the complainant then began to communicate with each other via this messaging app. At times, the Offender expressed an interest in taking the complainant out to dinner. The complainant politely refused his invitations.

16. On Saturday 18 March 2017, the complainant was invited to KL’s residence at XXXX Liverpool Road, Burwood Heights for a dinner party, to celebrate the end of exams.

17. At about 4:20pm the complainant arrived at the unit. KL’s boyfriend, known by the initials ‘CS’ and roommate known by the initials ‘RZ’, whom she had never met before were also there.

18. The unit has two bedrooms. The master bedroom has an en suite and was occupied by CS and KL, with the spare bedroom occupied by RZ.

19. By 5:20pm, the Offender arrived at the unit. The complainant recognised him as the male she had been communicating with on WeChat based upon his profile pictures.

20. Shortly after arriving, KL, CS, the Offender and the complainant sat at the dining table and ate dinner, accompanied by some red wine.

21. After dinner, all four started to play a card game. There was a rule, that if you lost a round, the person had to drink alcohol. The complainant won a number of hands and as a result did not have to consume as much alcohol as some of the others.

22. The Offender at some stage produced tow further bottles of red wine and Chivas Regal Whiskey before returning to the game.

23. During the night, the Offender said to the complainant, in Mandarin, “At last, I finally meet you, I wanted to go out with you”.

24. At around 9:00pm, the group decided to stop the card games and someone suggested they go out to Karaoke.

25. At about this time, the complainant decided she would use the bathroom and went into the en suite from KL’s bedroom.

26. Once there, the complainant removed her jumpsuit, stockings and underpants which fell to her ankles. This left the complainant naked with the exception of her bra.

27. The complainant sat on the toilet and began to call her mother but cancelled the call, just as the bathroom door opened.

28. The complainant saw the Offender enter the bathroom and immediately tried to cover her vagina area. The complainant was startled.

29. The complainant had not finished urinating when the accused sat on her lap. She could not stand up as the Offender was too heavy. The Offender placed his hand around the back of her and unlatched her bra.

30. The Offender then slid his hands to the front of her body and placed his hands towards the complainant’s breasts. The bra was then either fully removed or fell to the ground.

31. The complainant started to panic and yelled “No, No, No”. Once the complainant had finished urinating, she said “No, piss off, don’t touch me” and stood up. At this time, the Offender pushed the complainant’s head into the wall (Form 1: Common Assault).

32. The Offender then tried to pull the complainant’s head down towards the Offender’s now exposed penis, which she saw was not erect. The complainant also noticed the accused was wearing red underwear (Form 1: Indecent Assault).

Indecent Assault – s61L Crimes Act 1900

33. The complainant tried to pull away from the Offender but was unable to. The Offender placed his hand on the outside of her vagina. She noticed the touching to that area three times.

34. The complainant kept trying to push the Offender away. The Offender said, “why do you reject me, you are not a virgin?”

35. She urged the Offender, “why don’t we just talk and be friends?” The offender said, “Why do you reject me, every time I want us to go out?”

36. At this stage, the complainant was then assisted by flatmate RZ whilst in the lounge room. The Offender and CS retreated to the bathroom for a brief period of time and RZ began to collect the complainant’s belongings.

37. The complainant got up, grabbed her belongings and ran out of the unit down the stairs and hid behind some neighbours who had come out to enquire about the noise.

38. The Offender followed the complainant and told the neighbours “she is my sister and not to worry about her” in attempts to allow her to run upstairs.

39. The police were nevertheless immediately contacted. The complainant made immediate disclosures to the neighbours and the police about what had occurred in the bathroom.

40. At about 9:55pm, the Offender was arrested within the lounge room of the unit. Police observe that the Offender’s pants zipper was down and red underpants could be seen. A photograph was taken. Police observed the Offender to be intoxicated, with his speech slurred and unsteady on his feet.

41. The complainant was conveyed by ambulance to Royal Prince Alfred Hospital where she was examined by medical staff.

42. The complainant suffered minor redness to her knees and a lump on her head as a result of the incident and suffered some pain as a result of the assaults.

43. The complainant participated in a SAIK and a blood sample was also taken. The prescribed concentration of alcohol was 0.027 grams of alcohol/100 millilitres of blood. An expert opined that at the estimated most probable blood alcohol concentration of 0.06 grams of alcohol per 100 millilitres of blood, some degree of cognitive impairment would be expected. It is also likely that impaired motor function, such as some slurring of speech would occur. Defects in gross motor function would not be apparent to the casual observer.

44. He further opined, the extent of impairment caused to the complainant would depend on tolerance if any, she may have developed to alcohol with occasional or frequent consumption.

OBJECTIVE FACTORS

Generally

45. A predominant factor relevant to the sentence is the objective seriousness of the offence. It is however not necessary to articulate a determination by placing the offence along a hypothetical range. It remains an essential task for the Court to undertake an evaluative assessment of the objective seriousness of the offending. The starting points are the legislative guideposts to which I have already referred, that is, the maximum periods of imprisonment.

46. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

47. As long ago as 2002, the Court of Criminal Appeal stated that sexual assault has “generally come to be regarded as requiring increased sentences … by reasons of a change of community attitudes” (R v MJR (2002) 54 NSWLR 368 at [11]). To that end, Price J stated in R v Hibberd [2009] NSWCCA 20 at [55] that “The heinousness of the offending conduct depends on the facts of the case and not on the statute defining the offence.”

48. In determining the objective seriousness of the offending in this case I have had regard to the conduct of the offender and the other facts to which I have previously referred.

49. The Court of Criminal Appeal in R v Daley [2010] NSWCCA 223 at [48] noted factors which are relevant in this case:

“I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased.”

50. The Court then went on to deal with the particular circumstances of that case.

51. In this case the Crown submitted that the objective seriousness of the offence is not downgraded purely due to the short nature of time in which the indecent assault took place. I accept that submission. The Crown also submitted that in both offences the complainant was humiliated and this was a relevant factor as considered by the CCA in Daley previously referred to. I also accept that submission.

52. The Crown ultimately submitted that the objective seriousness of the offending fell in the mid-range.

53. It is submitted on behalf of the Offender that whilst not attempting to mitigate the Offender’s conduct, the Offender misread the complainant’s actions in the bathroom and thought that she was masturbating. Queen’s Counsel for the Offender submitted that due to the short period of time in which the indecent assault occurred and the minimal degree of violence or physical hurt inflicted, that the objective seriousness falls in the low-range. I reject that submission. There is no mention in the agreed facts of the Offender being under any misapprehension as to the state of mind or intention of the complainant. She was in every sense a victim of his offending.

54. I note that the offender chose not to give evidence at the sentence hearing at which time he could have provided some further insight into his impression of the complainant’s state of mind but chose not to do so.

55. During the sentencing hearing, however, a number of exchanges occurred between the Court and Queen’s Counsel for the Offender. It was somewhat alarming that it was stated on behalf of the Offender that “this young man comes before you and I have sort of rightly or wrongly accepted that the female complainant was in a vulnerable position. She was, and I don’t want to labour this, I’m not going to say that is her fault what happened but she was in that position because she put herself in that position. She went into the bathroom, she didn’t lock the door, there were other males”. The suggestion that the complainant was in any way at fault for the offending perpetrated by the Offender is rejected.

56. The exchange between the Court and Mr Ramage QC continued, stating in accepting that the complainant was in a vulnerable circumstance “she is vulnerable in the sense she has got no clothes on, she’s only got her bra on”. That is hardly surprising given that the complainant was at the time utilising the bathroom facilities to urinate and was, the facts establish, wearing a jumpsuit which needed to be removed in order to achieve that outcome.

57. Nevertheless, Queen’s Counsel for the Offender described the cubical space within which the complainant was located, namely the toilet, as being smaller than the standard cubical. Somewhat alarmingly he also went on to state “I wanted to take up and without wanting to cast blame in terms of how that is, how the situation arises, commences, if he had been sensible -”.

58. It was unclear precisely what Mr Ramage QC was intending by those remarks. It was either to cast some blame or fault upon the complainant or alternatively an attempt to mitigate against his client’s own offending conduct. When asked what the relevance of those submissions were Mr Ramage QC stated “it’s only relevant to this extent that, your Honour, whatever vulnerability the young lady faced it was initially because she placed herself in that situation”.

59. Again, attempting to grapple with the relevance of Queen Counsel’s submissions he was asked whether it bore upon the objective gravity or seriousness of the offending and he stated that it did. To distil that exchange between the bench and senior counsel the submission appears to have been that by going to the bathroom and partially disrobing the complainant put herself in a position of vulnerability which lead to the offending taking place at the hands of the offender.

60. I utterly reject the suggestion that the complainant contributed to the objective seriousness of the offence in any way. It is entirely inappropriate in my view to focus on the conduct of the victim or to characterise the victim’s manner of dress or behaviour as provocative or as causing a vulnerability as somehow contributing to the commission of the offence. I note the decisions of the CCA in matters of R v Radenkovic and also the matter of R v King, both unreported [1990] and [1991], respectively.

61. Additionally, the fact that there was a pre-existing connection between the offender and the complainant, albeit through social media and not having met, does not mitigate the criminality. In making that finding I rely upon the comments of the Court of Criminal Appeal in R v Cortese [2013] NSWCCA 148 at [55].

62. The submissions made by Queen’s Counsel for the Offender are completely and utterly out of touch with community expectations and standards. I reject those submissions and I will sentence the Offender by reference to the objective seriousness as established by the agreed facts. The circumstances which exist here in my view demonstrate the objective seriousness falls well and truly in the mid-range. The suggestion that it is in the low range is untenable.

63. The Court may also have regard to any aggravating or mitigating circumstance, particular to the offending and the Offender. The former to be proven beyond reasonable doubt and the latter on the balance of probabilities.

64. The Crown submitted that a relevant aggravating feature is the victim impact statement. The Crown fairly conceded that there is no other evidence in relation to harm suffered by the victim in relation to the offence outside of the injuries referred to in the Agreed Facts.

65. In the matter of Baines v R [2016] NSWCCA 132 Rothman J noted at [45-46] the relevance of victim impact statements and how the Court should take them into account.

66. Without further evidence as to the harm that the complainant has felt in relation to the indecent assault, I am unable to take the victim impact statement as an aggravating factor further than the usual and expected result of the conduct. I have, however, had regard to the content of the complainant’s statement.

67. The Crown also submitted that the victim was vulnerable, by virtue of the fact that the victim was physically indisposed at the time of the offences and was still in the process of urinating when the Offender initially sat on her lap.

68. The fact that she was in a vulnerable position of course is to be distinguished from the complainant being a vulnerable person. Queen’s Counsel for the Offender accepted that she was in a vulnerable position being in a confined space, however, she does not fall into the category of a vulnerable person such as a taxi driver or a storekeeper. Nevertheless, whilst there was vulnerability which pervaded the offending I do not regard that as an independent or aggravating factor.

69. The mitigating factors that exist here and are relevant to this exercise include:

1. the Offender was a person of good character;

2. the Offender does not have a record of previous convictions;

1. the Offender has good prospects of rehabilitation;

2. the remorse shown by the Offender; and

3. the plea of guilty, albeit quite late.

THE SUBJECTIVE CASE

70. In assessing the Offender’s subjective case, I have taken into account the material that was tendered in the Offender’s Bundle (Exhibit 1).

71. The Offender is 26 years old. In the Psychologist Report by Chafic Awit, Registered Psychologist dated 12 September 2018, the Offender advised that he was born in North East China and was an only child. The Offender described a mixed upbringing as his parents were constantly arguing. The Offender advised that he spent a great deal of time living with his maternal grandparents due to their proximity to his school.

72. The Offender noted that his mother is a doctor who is employed by the Chinese Military. The Offender described a loving relationship with his mother. The Offender’s father formerly worked as a Professor in the Military University but has since retired to write a book. The Offender reported that his father is a difficult person to get along with.

73. The Offender reported that he was a high achieving student at both primary and high school. The Offender advised that after completing high school he attended the University of Taiyuan Technology in China, where he completed a Bachelor of Law and a Bachelor of Product Management. The Offender migrated to Australia in 2015 to complete a Double Master’s Degree, in Human Resource Management and International Law. This was completed in July 2018.

74. After completing his studies in China, the Offender worked part-time selling medical accessories as well as having a part-time human resources position. Since migrating to Australia, the Offender worked in two part-time roles, one as a Warehouse Assistant and one as a Football Reporter.

75. The Offender recalled one significant relationship, which took place for a period of approximately three years. This relationship ended one year prior to the Offender’s migration to Australia.

76. The Offender advised that whilst he had a number of friends in China, he struggled to connect with people in Australia.

77. The Offender denied having any mental health issues prior to migrating in Australia. Since moving to Australia, the Offender reported experiencing symptoms of anxiety and depression, with symptoms including low mood, bleak outlook for his future, feelings of helplessness and hopelessness, uncontrollable worry, a loss of interest and memory/concentration issues. The Offender advised that these symptoms have worsened significantly since his arrest.

78. The Offender has commenced psychological treatment, but has advised that he still experiences low mood and anxiousness.

79. The psychologist noted that in his professional opinion that “there is a psychological nexus between Mr Zhao’s condition and the offence before the Court.” He went on to refer to the fact that the Offender was suffering from anxiety and depression over the last few years due to the adjustment of being in a foreign country. The psychologist went on to state “it is further the professional opinion of the writer that his impacted ability to weigh the consequences of his actions on the night of the offences was due to both his ongoing underlying symptoms and by his level of intoxication”.

80. I have had reference to a number of character references from friends and family of the Offender. The Offender’s mother, Wang Dongdong, described the Offender as a “kind and responsible man to his family, he is courteous and considerate to people around him, and he rarely has conflicts with others.” Dr Brett Williams, a solicitor who taught the Offender in a World Trade Organization Law unit, described the Offender as “polite, friendly”. A friend of the Offender, Lu Mengqin, described the Offender as “extremely kind, dependable and well regarded amongst his peers”. Another friend of the Offender, Yingrui Wu, recalled instances whilst both the Offender and Ms Wu were living in Sydney where the Offender went out of his way to help her in challenging situations. Similar sentiments arise in the references of Xu Dening, Zhong Xin, Hu Xiaomin, Jiang Dongju, Xu Wang and Tianyi Zhang Shao. All authors of personal references describe shock and surprise when they learned of the Offender’s conduct.

81. I have also had close regard to the Offender’s letter of apology to the Court. The Offender described sincere remorse and self-disappointment for his actions, as well as feeling ashamed for the pain that he caused upon the complainant. He also described the pain to which the offending has caused his family, which resulted in the admission of his grandparents to hospital.

82. In approaching all of the subjective matters, I am cognisant of the fact that at the sentence hearing no sworn evidence was given and for that reason caution is exercised in the approach which the Court adopts both to the psychological opinion and to the character references.

83. In his letter of apology the Offender acknowledged that as a result of this conviction he will no longer be able to plan a career in the law or in Government. That is described by Queen’s Counsel for the Offender as being extra-curial punishment. I note at page 8 of the submissions on behalf of the Offender (MFI 2) reference is made to various cases, including the matter of R v Einfeld [2010] NSWCCA 87 and the matter of R v Rivkin (2003) 45 A Crim R 366 which are referred to on p 9 of the submissions. In determining the appropriate sentence in this case I have taken into account and had regard to the effect of the conviction and sentence on the offender given his particular circumstances.

84. It was further submitted on behalf of the Offender that the Court would have regard to cultural isolation. Reference was made to a decision of the Court of Criminal Appeal in the matter of Xiao v R [2018] NSWCCA 4 at [356] where in resentencing a Chinese national it was stated:

“In sentencing the applicant it is also necessary to take into account the fact that he is a foreign national and as a result his time in custody would prove more onerous”.

85. Whilst there is no specific evidence in relation to the latter part of that statement I have, in determining the sentence in this matter, had regard to the fact that the offender is a foreign national.

86. The question of deportation is also raised by counsel for the offender and it is a matter to which I shall return in a moment.

Psychiatric Illness

87. The report of the psychologist is relied upon as establishing a psychiatric disorder and a nexus between the offending and that condition.

88. The fact that an offender was, or is, suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of sentencing may be taken into account at sentencing.

89. An offender’s mental condition can have the effect of reducing a person’s moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This principle especially applies where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

90. The High Court explained the rationale for the principle in Muldrock v The Queen at [53]:

“One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, [in R v Mooney in a passage that has been frequently cited, said this [(unrep, 21/6/78, Vic CCA) at p 5]: “General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.””

91. The High Court continued at [54]:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

92. Sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 488. The purposes overlap and often point in different directions. It is therefore erroneous in principle to approach sentencing, as Gleeson CJ put it in R v Engert at 68:

“as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

93. As mentioned above, Mr Awit, the author of the Psychologist Report, noted his professional opinion that there was a psychological nexus between the Offender’s condition and the offence.

94. I approach Mr Awit’s finding as to psychiatric diagnoses with great circumspection, mindful of the comments of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164]:

“… In approaching their evidence, I keep in mind that it is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52.”

95. Mr Awit was not cross-examined or in any way challenged at the sentence hearing. It is, as I have stated, necessary to closely examine his report before drawing any conclusions as to the nexus between the Offender’s mental condition and the offending.

96. In his report Mr Awit gave evidence of the Offender being tested against the diagnostic criteria for generalised anxiety disorder and major depressive disorder as well as using the Beck Anxiety Inventory and Beck Depression Inventory. It appears that Mr Awit’s professional opinion is based upon the results of the testing undertaken in 2018. The only evidence of symptoms referrable to the diagnosis made in 2018, the offending which occurred in 2017 comes from the history provided by the offender himself. Again, that history is provided to the psychologist in circumstances where it is not possible for the history to be tested by way of cross-examination by either the psychologist or the Offender.

97. In Aslan v R [2014] NSWCCA 114, Simpson J at [34] observed four principles that relate to how a mental health condition impacts on the objective seriousness of criminal offending. Simpson J stated that:

“… It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4).”

98. I have taken the psychologist’s psychiatric diagnoses into account in the subjective case but I am not satisfied that it provides any basis or reason for the offending.

Good Character

99. As I have previously mentioned, the offender’s character is also relevant. The character of an offender is a matter that may be taken into account in mitigating a penalty, it is one of a number of matters the Court must consider, the nature and circumstances of the offender of course being at the uppermost importance. In this case I find that the offender was a person of good character prior to this offending.

Remorse

100. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration. Evidence of remorse must be assessed in context however. Remorse is but one feature of post‑offence conduct upon which an Offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.

101. In this case the evidence of remorse is the guilty plea as well as a letter of apology to the Court. I observe again, however, that the Offender did not give evidence at the sentence hearing which affects the weight that the Court can give to his expressions of remorse.

Particular Hardship to Offender

102. As noted previously this is a matter to which senior counsel for the offender made specific reference in the written submissions. Reference was made to R v Kwon [2004] NSWCCA 456 where it was, according to the submissions, stated that the Court had no hesitation in treating the prospect of deportation as a factor properly taken into account in mitigation of sentence.

103. It is further stated in the submissions:

“In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender’s deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true.”

104. Queen’s Counsel also referred to the Court to the decision of the Victorian Court of Appeal in the matter of R v Schneider [2016] VSCA 76 where it was accepted by the Court that a period of imprisonment would be more burdensome for a person at risk of deportation.

105. Against that, the Crown has referred the Court to a decision of the New South Wales Court of Criminal Appeal in the matter of Yow v R [2010] NSWCCA 251 where at para [21] the Court referred to an earlier decision of Justice Johnson in R v Van Xuan Nguyen [2005] NSWSC 600 at [58] where his Honour stated:

“It is an established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government. Moreover, the High Court of Australia has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71; R v Van Hong Pham [2005] NSWCCA 94 at [13]. The fact that the prisoner will be deported from Australia is an immaterial factor in structuring a sentence in this case: R v Van Hong Pham, above, at [14]. Where an offender would otherwise qualify for a finding of “special circumstances”, a sentencing judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non-parole period and that supervision therefore would not be provided in Australia: R v Mirzaee [2004] NSWCCA 315 at [21].

106. Although the authorities referred to by the Crown and by Queen’s Counsel for the Offender appear to be conflicting, I have in the sentencing exercise had regard to the fact that the Offender is a person who may be the subject of deportation at the conclusion of his period of incarceration. I have also taken into account the fact that he is a foreign national which may cause his time in custody to be more onerous.

Rehabilitation

107. Having given careful consideration to the evidence which informs this matter, I find that the prospects of successful rehabilitation are strong. That evidence includes the opinion of Mr Awit, who notes the Offender’s previous good character and remorse regarding the offending.

Re-offending

108. Consistent with my finding concerning rehabilitation, I find that the likelihood of reoffending is low. I have also had regard to the opinion as to this matter by Mr Awit’s report.

109. This impacts upon the need for and reduces the need for specific deterrence.

approach to sentencing

General Principles

110. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose a sentence on an Offender, as follows:

1. punishment. There is no doubt that the Offender in this case must be adequately punished for the offending he has conducted;

2. deterrence. Whilst I am mindful of the psychological/psychiatric conditions referred to by the psychologist in his report as reducing the need for general deterrence and also am mindful of the risk of re-offending as being low and thereby affecting the need for specific deterrence, it is however necessary for the Court to structure a sentence which ensures that a sufficient degree of deterrence both specific and general is achieved;

3. protection. To protect the community from the Offender. Consistent with my findings regarding rehabilitation and re-offending I am not concerned by the risk to the community by the offender, although my concerns such as they are in that regard are obviously untested and guarded;

4. rehabilitation. To promote the rehabilitation of the Offender, which is a matter to which I have had regards;

5. accountability. To make the Offender accountable for his or her actions. Whilst there has been some expression of remorse it did not take the form of sworn evidence from the offender and attracts therefore reduced weight. I have taken into account the need for accountability in arriving at the appropriate sentence;

6. denunciation. Conduct of the type engaged in by the offender demands firm denunciation by the Court. The particular circumstances of the offending, namely, at a private dinner party where the offender followed the complainant into a bathroom and finding her sitting on the toilet then sat on her lap before removing her bra and inappropriately touching her is conduct which the community would regard as entirely inappropriate and requiring its denunciation; and

7. recognition. To recognise the harm done to the victim of the crime and the community.

111. Of course the emphasis to be placed upon the various purposes of sentencing will vary according to the circumstances of each case, including “the objective and the subjective circumstances”.

PROPORTIONALITY

112. The common law has long recognised that punishment must fit the crime. A sentence should not be increased beyond what is proportionate to the crime in order to merely extent the period of protection of the society from the risk of recidivism on the part of the offender.

113. The principle of proportionality finds its statutory expression in s3A of the Crimes (Sentencing Procedure) Act as one of the purposes of punishment being to ensure that an offender is adequately punished.

114. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. In sentencing there must be reasonable proportionality between the sentence and the circumstances of the crime.

115. The relevant importance of the objective facts and the subjective features will of course vary in each case and due weight must be given to the objective circumstances as the Court engaged in the discretionary process of instinctive synthesis.

IMPRISONMENT

116. I must be satisfied, having considered all possible alternatives, that no sentence (including non-custodial sentences) other than imprisonment is appropriate.

117. In this case, the Crown contends that the threshold under s5 has been met and that a term of imprisonment is warranted.

116. Queen’s Counsel for the Offender submitted that the threshold under s5 had not been met, due to the low level of objective seriousness and the strong subjective case in the Offender’s favour. Whilst I accept the strength of the subjective case, I do not accept the submission of Queen’s Counsel concerning objective seriousness.

117. There is no doubt that prior to this offending the Offender was a person of good character. The number of references tendered to the Court attests to this. I must, however, be mindful of the Court of Criminal Appeal’s approach from R v MJR (2002) 54 NSWLR 368 at [11], which states that sexual assault offences “generally come to be regarded as requiring increased sentences … by reasons of a change of community attitudes”.

118. I find that no sentence other than full-time imprisonment is appropriate in the circumstances.

Guilty Plea

121. In accordance with s22 of the Sentencing Act, the court must also, in passing sentence, take into account:

1. the fact that the Offender has pleaded guilty; and

2. when the Offender pleaded guilty or indicated an intention to plead guilty; and

3. the circumstances in which the Offender indicated and intention to plead guilty.

122. After taking those matters into account, the Court may impose a lesser penalty than it would otherwise have imposed.

123. In this instance, the Offender pleaded guilty on 9 August 2018, which would be considered a late stage in assessing the value of the plea. I note that this plea was made in the face of a strong Crown case.

124. On behalf of the Offender it was submitted that a discount of 15% would be appropriate in the circumstances. The Crown suggested the lower end of a range of 10-15% upon direct questioning by the Court. This is, of course, a matter for discretion. I consider a discount of 12% to be reasonable and fair in the circumstances. I find that such a discount will not result in a lesser penalty which is unreasonably disproportionate to the nature and circumstances of the offences.

special circumstances – s44

125. It is agreed that special circumstances exist so as to justify a departure from the statutory ratio of parole due to the offender’s age and that this sentence will result in his first time in imprisonment.

126. Having regard to the addresses made by the Crown and senior counsel for the offender in respect of this topic, I find that special circumstances do exist such that the statutory ratio would be favourably varied.

consistency

127. The purpose of having regard to statistics is to attempt to achieve consistency in sentencing, not to ensure some mathematical or numerical equivalence.

128. The Court should have regard to the general pattern of sentences. Statistics do no more than establish the range of sentences imposed. Sentencing statistics are a blunt instrument. For many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case. Undue weight must not be given to them.

129. In this case I have considered the statistics for offences of this nature and offenders of his profile. I am satisfied that the sentence to be imposed is consistent with sentences imposed in like matters, although I am conscious of the fact that I am not informed as to the precise circumstances of the like matters.

130. In Barbaro v R; Zirilli v R (2014) 253 CLR 58 the High Court stated that in seeking consistency it is appropriate for judges to have regard to what has been done in other cases and that they may establish a range. The history is not to be considered as marking the outer bounds of permissible discretion but is more a yardstick against which to examine the proposed sentence.

131. This was emphasised in The Queen v Pham (2015) 256 CLR 550, where Bell and Gageler JJ stated at [49]:

“Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled (see Knight v R [2015] NSWCCA 222 at [3]-[13] per R A Hulme J) and provided the limitations explained … in Barbaro … are observed. The value of sentencing statistics will vary between offences.”

132. In determining the sentence in this case I have as stated had regard to statistics but by no means have been unduly influenced by them. I am satisfied that the outcome in this case is consistent with the outcome in similar cases involving the same type of offending.

totality

133. It was submitted by Queen’s Counsel for the Offender that this matter could have been dealt with in the Local Court, thereby diminishing the maximum possible sentence. In Baines at [35], Rothman J noted that:

“A charge that may be dealt with summarily in the Local Court and also on indictment is either brought appropriately in the District Court or it is not. If the application of sentencing principles to achieve the purposes of sentencing result in the imposition of a sentence beyond the jurisdiction of the Local Court, then the matter is plainly appropriate for the District Court. It is unclear what regard should be had to the fact that a like offence, warranting a lesser sentence, could have been brought in the Local Court.”

134. The sentence I will impose will ensure that whilst dealt with in an appropriate matter in this court it is not crushing in nature.

the sentence

Commencement Date – s47

135. As the Offender has been on bail since the offending took place, the sentence will commence today.

Discount to be applied

136. As stated previously, I will discount the sentence by 12%.

Sentence

137. For the head sentence, I have determined that a period of 2 years and 6 months is just and appropriate in the circumstances. After the discount of 12%, that brings a sentence rounded down to 26 months. With a finding of special circumstances for the reasons mentioned above, I impose a non-parole period of 17 months.

pronouncement of conviction and sentence

138. Would the Offender please stand?

139. You are convicted of the offence set out on the Indictment.

140. I impose a sentence consisting of a non-parole period of 17 months commencing 12 October 2018 and expiring 11 March 2020 at which time you will released on parole. I impose a head sentence of 26 months, after a discount of 12%. This head sentence will expire on 11 December 2020. This sentence has been arrived at following consideration of the additional charges on the Form 1.

141. I direct that a copy of the report by Mr Chafic Awit accompany the Offender’s Warrant of Commitment.

EXPLANATION TO THE OFFENDER

142. This means that you have been sentenced to a period of imprisonment of 26 months. The non-parole period which I have set is the minimum time you must remain in prison. After that date, 11 March 2020, you will be released to parole. During the period on parole you must be of good behaviour.

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I certify that these are the reasons for the Judgment

of his Honour Judge D Wilson SC

Associate

Last Revised 13 February 2019

Decision last updated: 13 February 2019