R v Abdulhussein

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND	CA175/01

THE QUEEN

ABDULHUSSEIN SHIHAD ABDULHUSSEIN

Hearing:	7 February 2002
Coram:	Gault J Keith J Blanchard J
Appearances:	C L Harder for the Appellant C L Mander for the Crown
Judgment:	7 February 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The appellant was found guilty following a jury trial of two counts of sexual violation by rape, one count of sexual violation by unlawful sexual connection and one count of abduction of a woman with the intent to have sexual intercourse with her. He was sentenced to 11 years imprisonment on each of the counts of sexual violation by rape, five years for sexual violation by unlawful sexual connection and six years for abduction. The sentences are to be served concurrently. The appellant originally appealed against both conviction and sentence.
When the conviction appeal was called for hearing on 3 December 2001 the Court adjourned the hearing to allow the appellant to seek certain fresh evidence. Mr Harder informed us today that the further inquiries had not provided the relevant evidence and that the appeal against conviction was to be withdrawn. It is accordingly dismissed.
The charges relate to an incident that occurred during evening hours in July 1999. The victim, a female student aged 16 years, was waiting at a bus stop on a dark and very wet night. She was waiting for a bus for which she already had a ticket so that she could go to her aunt’s home. The appellant, an Iraqi refugee who had been in New Zealand for almost three years, saw the victim as he drove past the bus stop. He did a U-turn and parked his vehicle on the other side of the road almost opposite the bus stop. After watching the victim he drove the vehicle to a parking area beside the bus stop, stopped the car and approached the victim. He endeavoured to persuade her to get into his car on the pretext that he would take her home but she resisted. The appellant was a stranger to her. The appellant then returned to his car, drove it out of the carpark area and brought it to a stop directly outside the bus stop.
The appellant manhandled the victim into his car. She was frightened and crying. He locked the doors though the central locking system and drove her to a secluded and darkened area. It was dark, cold and raining heavily and he held her captive in his car in an area remote from any ascertainable help. She was trapped and could not escape.
Once in the secluded area the appellant indecently assaulted the victim by touching her breasts and pushing his fingers into her vagina. Then despite her protests he covered her head with her clothing, and raped her, threatening her she would be hurt if she resisted. Shortly afterwards he raped her a second time.
The appellant then drove the victim back to the same general area from which he had abducted her. He then released her from the car but only after she was made to agree with his demands that he would meet her the next day. The victim made her way to her aunt’s home, which was about ten minutes away. She was crying and in an extremely distraught state. The Police were called immediately. The victim gave the police a description of the motor vehicle and the appellant.
The next day the appellant was stopped in his vehicle and interviewed by Police. The appellant denied ever having seen the girl or picking anyone up. He said that he had been a member of the Police force in Iraq for 15 years and he well understood the crime of rape and the penalties that might arise from such a crime in Iraq. The complaint, he said, was false and he contended that the complainant had never been in his car even after the victim’s bus ticket was found in the car on the floor of the front passenger side.
After the appellant was committed for trial, forensic analysis undertaken by ESR established that there were seminal stains on the front passenger seat and the girl’s underclothes. Further DNA analysis of swabs taken from the victim’s internal cavities produced DNA profiling results of such compelling statistical probability as to make it beyond any argument that the semen originated from the appellant.
The appellant maintained his not guilty plea and at trial gave evidence, changing his story. He said that the girl willingly got into his car; that she initiated sexual contact; that she consented to all sexual acts; and that her evidence was false. The appellant said that after they had sex the victim demanded $100 for her services. It was only when his attempt to obtain the $100 from an ATM machine failed that the victim became angry. His evidence was that his explanation given in the previous lengthy interview with the Police was untrue because he was frightened and confused. From the guilty verdicts it is clear that the jury did not accept the appellant’s version of events.
The Judge noted in mitigation the appellant’s large family and largely law-abiding life. The Judge acknowledged the appellant’s background as a person fleeing Iraq and seeking the aid of the New Zealand society. He recognised the burdens that any term of imprisonment would impose on the appellant due to ethnic, language and dietary matters. He noted the probation officer’s reference to the different cultural values which the appellant was brought up with in Iraq, particularly in relation to the value and treatment of women. However the Judge considered that these remarks could not have been intended to excuse or be offered in mitigation of the appellant’s crimes. The appellant had admitted to Police that he knew his actions were a crime and punishable in both New Zealand and Iraq.
The Judge also had doubts over the appellant’s professed remorse. He considered that the appellant had shown no concern for his victim and that he still denied his actions, guilt or seriousness of his behaviour. As such the appellant was not entitled to credit genuine remorse as a discounting feature.
In terms of aggravating features, the Judge was satisfied that the appellant was a predator on that night, looking for a woman or girl to pick up. The abduction and depravation of the victim’s liberty was another aggravating feature, as was her imprisonment in the appellant’s car for a little over an hour.
The Judge took into account cultural features in accordance with s16 of the Criminal Justice Act 1985. A report prepared under that section suggested that because of his cultural background the appellant had a view that any woman or girl alone on the street was asking for sex. The Judge said this of the report:
The report endeavours to paint in the best possible light your actions, and that is natural. But your counsellor is simply narrating that which you and your family now say to her. That is the excuse that you now give her but that is not what you said in your evidence to the jury which the jury rejected as lies. Your case is not one of cultural misreading of signals. It is one of rape which you knew to be against the law here and in Iraq.
The Judge continued that the law is clear that the sentencing principles to be applied in relation to persons of a certain ethnic or racial group must be the same as those in other cases. Equality before the law is fundamental to the administration of justice. Penalties may of course reflect as matters of mitigation factors arising from an offender’s background in which a particular cultural or ethnic heritage predominates. The rights of victims in a society are determined by proper humanitarian considerations and not by distorted cultural views of a particular group of men.
The Judge also considered the important question of deterrence. Further, the impact of the crime on the victim could not be discarded. The victim impact statement showed that the harm to her had continued in a very significant way. Such effects and damage may be long term.
Against the maximum sentence of 20 years for rape and 14 years for abduction, the Court had to view all the circumstances of the offending and impose a sentence properly reflecting the total gravity of the crime bearing in mind mitigating and aggravating factors. The crimes
were wicked ones bearing in mind the youth of the girl, the predatory nature of offending, the crimes themselves, your callous indifference to her, and I am satisfied an absence of true remorse.
The Judge reviewed case law in the area but found it provided very little assistance because the facts are different and the ages and backgrounds of the offenders are different. He concluded
applying the totality principle and allowing such mercy, and I can put it no other way, as I can for your personal circumstances and upbringing, I am satisfied that the appropriate sentence for your crimes, when viewed cumulatively, is a term of eleven (11) years imprisonment.
Mr Harder submits that the sentence of 11 years is manifestly too high because:
•although it was a serious attack there was no additional violence
•no weapon was used
•the appellant had a previous good record (only one minor male assaults female conviction)
•the appellant’s background as a UN refugee which the sentencing Judge said must be put into perspective and not given undue emphasis
•prison will be more difficult for the appellant because he was imprisoned and tortured as a refugee
•the appellant’s life and his family’s lives were constantly under threat for long periods of time as refugees when they escaped and walked in silence having to keep their babies silent
•the abduction was for a little over an hour and not two to three hours as in R v Johnston CA402/94, 20 March 1995, in which 12 years imprisonment was upheld
Mr Mander, for the Crown, submits that the effective sentence of 11 years imprisonment was within the sentencing discretion available to the sentencing Judge. He reviewed cases with what he saw as similar features:
•R v Bond CA302/95, 8 November 1995, in which a starting point of nine years was approved for abduction of a woman with intent to have sexual intercourse with her in which no sexual violation occurred;
•R v Apperley CA405/98, 13 May 1999, in which a starting point of 16 years was approved for the abduction and sexual violation of a 15 year old girl involving a knife; and
•Maulolo v R CA129/96, 15 August 1996, in which a guilty plea to the kidnapping and sexually violation of a male hitchhiker resulted in a ten year sentence, longer than might otherwise have been appropriate due to concern over the danger the appellant had presented to the public unless treatment and counselling proved successful.
We consider that the sentences were within the sentencing range available to the Judge. There is little we need add to the Judge’s reasons. He identified the aggravating and mitigating factors and relevant sentencing principles. He gave them appropriate consideration in reaching the final sentence. The authorities establish that the element of abduction is a significant aggravating factor. While the appellant’s cultural background is a matter to be taken into consideration the sentencing Judge did weigh that but considered, rightly, that it could be given only limited weight for crimes such as these.
We accordingly dismiss the appeal against sentence.

Solicitor
Crown Solicitor, Wellington for the Crown

[2002] NZCA 393

7 February 2002