Regina v Ashadulhoque Bhuiyan

[2008] NSWDC 55

CITATION:	Regina v Ashadulhoque Bhuiyan [2008] NSWDC 55
HEARING DATE(S):	14/12/07,15/02/08, 22/02/08, 29/02/08
JUDGMENT DATE:	11 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Count 1: I sentence him to a limiting term of three years. The term will commence on 2nd March 2008 and will conclude on 1st March 2011. Count 3: I sentence him to a limiting term of eight years. This term will be concurrent with the first tem. The term will commence on 2nd March 2008 and will conclude on 1st March 2016. I refer the matter to the Mental Health Review Tribunal and I order that the offender go into custody pending further order by that Tribunal. I recommend that he be given urgent psychiatric treatment and counselling and treatment for drug and alcohol addiction.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated sexual assault - appropriate range of sentence - background and character of offender - chronic alcoholism - hardship in custody - imposition of limiting term - intoxication - mental illness - offence of low range of seriousness - threat of violence - rehabilitation - special circumstances
LEGISLATION CITED:	s. 23 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	R v Hemsley [2004] NSWCCA 228 R v Henry 46 NSWLR 346 Regina v Jiminez NSWCCA 7 R v Tsiaras [1996] 1 VR 398 Lauritsen v R (2000) 114 A Crim R 333 Regina v Israil [2002] NSWCCA 255 R v Pearson [2004] NSWCCA 129 Regina v Douglas Wallace Pearce (NSWCCA 1 November 1996, unreported) R v Engert (1995) 84 A Crim R 67 Regina v Letteri (NSWCCA 18 March 1992, unreported)
PARTIES:	Regina Ashadulhoque Bhuiyan
FILE NUMBER(S):	07/11/0525
COUNSEL:	Regina: Mr P Lynch Offender: Mr R Jankowski Ms J Ghabrial
SOLICITORS:	Regina: NSW DPP Offender: Parish Patience

SENTENCE

Introduction

1 Ashadulhoque Bhuiyan is a most unfortunate man. He arrived in Australia from Bangladesh in November or December 1995 and within a few weeks of arriving, he asked Mr David Bitel, a well-known solicitor and human rights advocate, for assistance in having his claim to be a refugee recognised. Mr Bitel assisted him and ultimately he has been given permanent resident status.

2 According to the evidence of Mr Bitel, which I accept, Mr Bhuiyan is a homosexual and faces persecution if he returns to Bangladesh. Unfortunately, he is also a chronic alcoholic, mentally ill and now a sex offender. He was born on 20th January 1978 and so is now a little over 30 years old. It seems quite evident that his mental condition is linked to his alcoholism, but both became evident only after a number of years.

3 Eventually, Mr Bitel became his carer and worked very hard to get him into rehabilitation facilities and to get housing and employment for him. As well, Mr Bhuiyan was getting psychiatric treatment, including admissions into psychiatric units in hospitals.

4 In August 2005, he was living in accommodation in Yurong Street Sydney. Mr Bitel had also arranged this accommodation for him. Despite being on anti psychotic medication, Mr Bhuiyan continued to drink heavily and on the night of the offences was obviously very intoxicated, since, when arrested, he was unable to be interviewed for some hours.

5 The background to committing the offences was that he spoke to the complainant, a prostitute working from the streets near Darlinghurst and agreed on the payment of a price for her services. She then went with him to his flat in Yurong Street, where he locked the door from the inside.

6 He gave her the agreed money which she put in one of her socks. Both parties then stripped to nakedness and she put a condom on him, which he tore off and insisted, despite her protests and refusal, to have unprotected penile vaginal sex with her (first count) and then unprotected oral sex with her (third count). Before the oral sex he produced a knife and forced her to submit. She did so, only because she was afraid that he would cut her with the knife.

7 The complainant was so terrified that when she managed to open the door and escape, she ran naked and screaming down the street until she met a man living nearby who took her in, calmed her down and called the police.

8 The complainant had agreed for money to have sexual intercourse with the offender. However, she did not want to have it without a condom being worn by the offender. She was entitled to impose this condition on him, for her own protection from the possibility of getting or transmitting some type of disease.

9 His forcing unprotected sexual intercourse on her was a serious crime. He had locked her in a room, she was defenceless and she submitted in the first place because of force and in the second place because of fear of being cut.

10 Sex workers have the same rights as all other women to refuse to have sexual intercourse. The law protects their rights just as much as it protects the rights of all other women.

Factors concerning sentence

11 Section 23 of the Mental Health (Criminal Procedure) Act 1990 requires me to indicate whether; if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence, I would have imposed a sentence of imprisonment.

12 There is no doubt that if this had been a trial of a person who was tried for similar offences committed in similar circumstances, I would have imposed a sentence of imprisonment.

13 However, in imposing that sentence, I would have been required to take into account evidence of four principles enunciated in R v Hemsley [2004] NSWCCA 228 at paras 33-36, i.e.

“Mental illness may be relevant … in three ways. First , where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
Secondly , mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSWCCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
Thirdly , a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
A fourth , and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].” ( emphasis added ) .

14 Count 1 has a maximum sentence of 14 years and a standard non-parole period of 7 years. Count 3 has a maximum sentence of 20 years and a standard non-parole period of 10 years.

15 However, when I impose a limiting term, I do not fix a non-parole period, but what is equivalent to the head sentence that would have been imposed on an offender who was fit for trial but suffering from a mental illness which did not excuse the offence. In my opinion, the standard non-parole period is of relevance because it indicates a minimum period which should be imposed on an offender following a trial for a medium range offence.

16 Moreover, the fact that I must have regard to the standard non-parole period arises from the very wording of sec 23 of the Mental Health (Criminal Procedure) Act 1990, since I would have to consider it if I were imposing a sentence on an offender who was convicted after trial if I determined the offence was in the middle range of seriousness.

17 I do not consider these offences are in the middle range of seriousness because they involve forced sex on a woman who had entered into an agreement to provide oral and vaginal sex and was willing to do so, but only if the offender used a condom. She had been paid the agreed amount and took this with her when she left the flat of the offender. This could not be compared in seriousness to an offence where a woman who had not agreed to any sex at all and had sex forced on her, or to an offence where actual violence was used, as opposed to the threat of violence.

18 It follows that if I were sentencing an offender at trial for these offences, whilst I would have regard to the non-parole periods, I would not fix the standard non-parole periods as the non-parole to be served by the offender.

Other considerations

Rehabilitation

19 If the offender were to receive the appropriate treatment, it would seem probable to me that he could recover from alcoholism and from mental illness.

20 Following the conviction, I placed him on bail for the purpose of assessing the possibility of rehabilitation. Unfortunately, on two occasions he was ejected from hospitals that were set up for the purpose of the treatment of alcoholism. Despite this, it is always possible that with appropriate treatment he will respond properly and become rehabilitated. I have a report from the Mental Health Review Tribunal which is of the view that he would be best treated in the community.

21 Part of my sentence will be to place him in the care of the Mental Health Review Tribunal and it will then be a matter for that tribunal to determine if it can arrange for his treatment in the community. I would not wish to express any opinion.

Other matters

Character

22 Between 1998 and 2003 the offender appeared before the Central Local Court and the Downing Centre Local Court on a number of occasions for summary matters of dishonesty and an offence of failing or refusing to undergo a breath analysis and for being an unlicensed driver. He has never been sent to prison before. He cannot be regarded as someone of good character but his offences are consistent with his being an alcoholic and a mentally ill person. The offences suggest that he had an aimlessness about him. If he receives proper treatment, it would seem to be probable that he would not commit such offences again.

Hardship in custody

23 The offender will face hardship in custody greater than that experienced by many prisoners. The hardship will come from his being a foreign national who has a very confused understanding of his own national identity and few friends and no relatives living in Australia. He speaks and understands English but he will find the gaol environment very a difficult one. This is something to be taken into account in imposing a sentence on him.

Intoxication

24 The offender was very heavily intoxicated at the time he committed the offences. However, he was not so heavily intoxicated that he could not bargain with the complainant about the cost of the services, lock the door of the flat, pay her and threaten her. His intoxication may partly explain why he, a homosexual, would want sex with a female prostitute, but it does not excuse the offences, nor does it lessen the sentences which I must impose.

Special circumstances

25 I find special circumstances because this is the first time the offender has been in custody and because he is alcoholic and he is mentally ill and has shown an interest in rehabilitating himself.

Range of Sentence

26 In my opinion the sentence which I should impose for the first offence is a limiting term of three years. For the third offence, I consider there should be a limiting term of eight years. Both sentences should be concurrent and they will be backdated to commence from 2nd March 2008.

I sentence the offender as follows:

Count 1

27 I sentence him to a limiting term of three years. The term will commence on 2nd March 2008 and will conclude on 1st March 2011.

Count 3

28 I sentence him to a limiting term of eight years. This term will be concurrent with the first tem. The term will commence on 2nd March 2008 and will conclude on 1st March 2016.

29 I refer the matter to the Mental Health Review Tribunal and I order that the offender go into custody pending further order by that Tribunal.

30 I recommend that he be given urgent psychiatric treatment and counselling and treatment for drug and alcohol addiction.

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