District Court New South Wales Medium Neutral Citation: R v Aziz (a pseudonym) [2020] NSWDC 854 Hearing dates: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of eight years and six months with a non-parole period of five years six months Catchwords: CRIME — Child sex offences — Indecent assault person under 16 years of age- A domestic violence offence - Aggravated sexual intercourse - Victim <16 years - procure a child for unlawful sexual activity SENTENCING — Relevant factors on sentence — act of indecency with a child with a disability Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: BT v R [2010] NSWCCA 267 LB v R [2019] NSWCCA 151 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v the Queen (2011) 244 CLR 120 Nguyen v The Queen [2016] HCA 17 R v Edwards (1996) 90 A Crim R 510, R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Tepania v R [20018] NSWCCA 247 [103] Texts Cited: Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011 Category: Sentence Parties: Michael Aziz (the offender) Director of Public Prosecutions Representation: Counsel: Mr Thomas Woods (for the offender) Ms Fleur Sullivan, Crown Prosecutor Solicitors: Michael Vaughan & Co (for the offender) File Number(s): 2018/00098510 Publication restriction: Pseudonyms have been used for the names of the accused and the complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes SENTENCE – EX TEMPORE REVISED Introduction 1. In 2018 Quinn, a pseudonym, complained to her mother that her father's brother Michael Aziz, a pseudonym, had touched her in a sexual way. The police were called. Quinn was interviewed and Aziz was charged with nine offences, all said to have occurred in his home in Southern Wollongong between October 2016 and February 2018. In July 2020 a jury heard those allegations and on 4 August 2020, Aziz was found guilty on all nine counts. Aziz must now be sentenced for his crimes. The facts of sentence 1. The complainant's evidence-in-chief was given primarily in the form of Joint Investigation Response Team (JIRT) interviews with a police officer. The jury, by its verdicts, obviously accepted that account. I see no reason to depart from the evidence that has substantiated those verdicts. In summary: * Count 1: The charge of aggravated indecent assault relates to the first time that Quinn says the offender did something of a sexual nature to her. She was at his home and in bed in her cousin's bedroom. Her cousins were in another bed. The offender came over to where Quinn was in bed and touched and squeezed her breasts. Quinn said she was aged 12 or 13 at the time. * Counts 2, 3 and 4 occurred when Quinn was again visiting the offender's home with her family. She said she was aged between 12 and 14. She wanted to have a nap. The offender told her that she could use his bedroom. While she was in that room, the offender touched and squeezed her breasts on the outside of her clothing: count 2. He then inserted his fingers into her vagina: count 3. After that he kissed, licked and sucked her vagina and clitoris: count 4. * Counts 5 and 6 occurred on another visit to the offender's home. As Quinn came out the upstairs bathroom he came up to her and moved her down on her knees. He put his penis is her mouth: count 5. He then put a lubricant on his penis and again put his penis into her mouth. She said she was aged 12, 13 or 14: count 6. * Counts 7, 8 and 9 occurred on another family visit to the offender's home. The offender arranged for Quinn to listen to music on a sound system he had set up in a small room off the children's playroom. He came into the room and touched and squeezed her breasts under her clothes: count 7. He then told Quinn to film herself taking her clothes off: count 8. He then asked Quinn to view a video of himself naked and playing with his penis. She watched a small portion of it: count 9. She said she was aged between 12, 13 or 14. 1. Given the way the evidence came out at trial, it seems more likely than not, that with the possible exception of count 1, counts 2 to 7 occurred when Quinn was 13 or more likely close to 14. I find on balance that she was at the upper end of that age range with the possible exception of count 1. Objective seriousness 1. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties and standard non parole periods, where applicable, makes that clear. 2. Every sentence must be appropriate or proportionate to the gravity of the crime and considered in the light of its subjective circumstances. The objective seriousness of the particular offending in turn must be dependant in the light of the entirety of the facts and the circumstances in question. The form of forced sexual intercourse does not necessarily determine the objective seriousness of the offence. Rather, when assessing the objective seriousness of individual matters, the act or acts done, the character of the sexual or indecent assaults, and the degree of physical contact involved is of significance. 3. The nature of the event must be considered, as must the time over which the acts occurred and whether any pain, physical hurt or harm was caused to the child. Some degree of psychological harm is generally presumed. Other matters bearing upon the assessment include the age difference between the perpetrator and the child, and the relationship of the perpetrator to the child. 4. The age of the child relevant to the range encompassed by the offence is also relevant. Here, each incident occurred while Quinn was 14 or close to that age, or on one occasion younger. She was visiting the offender's home. The offender took advantage of opportunities where he was, in most cases, alone with the complainant or his children, so far as the count, who would not readily have observed what he was doing. 5. Aziz knew Quinn had a disability; a degenerative eye condition. A condition which, the evidence at trial indicated, she was at the time coping with admirably. But she had a disability nevertheless. In the circumstances here, while it was a substantial disability, it did not make her any more or less vulnerable than she was already, as a young niece in the offender's home. Her disability did not enable the offending in any way. Where Quinn's disability was an element of an offence, when assessing the seriousness of an offence, care will be taken not double count this factor: as it can also be a potential circumstance of aggravation: s21A(2)(l) Crimes (Sentencing Procedure) Act 1999. 6. The offender took advantage of the fact that as her uncle, he was in a relationship of trust and that if she did complain, it was unlikely she would be believed. Each act involved a gross breach of that trust. Each act was exploitative. Each act was solely directed at satisfying the offender's sexual urges without any regard for the complainant's wellbeing. 7. Counts 1 and 2 involved touching the child's breasts over her clothes. They were invasive and unwanted acts that would have been disturbing to a young child, but they were brief. 8. Count 2 was preparatory to more serious offending. 9. Count 7 was similarly brief, but involved skin on skin contact and was again an act preparatory to more serious offending. Count 3 involved the digital penetration of the child for a short period. It appears that no physical pain or discomfort was caused as none was reported. It involved both skin on skin contact and again a gross interference with the child without regard for any psychological consequences that might resolve. 10. Count 4, the episode of cunnilingus, was similarly a gross interference with the child. It took longer and was more invasive. Counts 5 and 6 involved the child being made to take the accused's penis in her mouth. While both brief, each act again involved gross interference with the child without regard for any psychological consequences that might result and was degrading for her. 11. Counts 8 and 9 presumed a level of compliance and forced complicity between the offender and his victim. The acts were brief but planned. Again, his demand was solely focused on his own prurient interests. Victim Impact Statement 1. The Victim Impact Statement from Quinn was received as exhibit C, but was read to the Court today by her counsellor. The Victim Impact Statement must be received and considered by the Court and must relate to "any personal harm suffered by the victim as a direct result of the offence." Particulars can include: 1. personal harm, actual bodily harm or psychological or psychiatric harm; 2. any emotional suffering or distress; 3. any harm to relationships with other persons, s 26 and s 28, Crimes (Sentencing Procedure) Act 1999. 1. While I will take into account the undoubted harm that this offence caused, there were with respect matters raised in the Victim Impact Statement that went beyond what it allowed and I cannot consider them. The facts set out about the offences must be related to the Victim Impact Statement and they to them. This offender is not responsible, subject to 68(1)(c), for what was done by others. Here it is accepted that the complainant was also an alleged victim of an assault by another relative and, presuming that offence occurred, it too must have had a significant impact upon her, relative with the current offender's crimes. 2. In her Victim Impact Statement, Quinn told me of the impact of her fight for justice and the pain, particularly the emotional pain she suffered at the time and now. Having been treated as an object, rather than a person, she has struggled with body image and has felt lonely and isolated. She now feels that she can move on as it is her uncle, not her, who should feel shame. 3. Studies, the subject of evidence before my Court, and the recent Royal Commission indicate that behavioural responses to child sexual abuse vary. They vary because of the diversity of abuse experiences. Impacts, short and long term, may be highly individualised, but it is clear that all forms of child mistreatment present significant risks for the child's later physical and emotional wellbeing. Maximum penalties 1. Counts 1, 2 and 7 carry the maximum penalty of 10 years and a standard non-parole period of eight years, s 61M(2) Crimes Act 1900. The relativity, or ratio, between that maximum and the standard non-parole period has been described by Courts of Criminal Appeal as "absurd" and "curious:" BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. It is "an uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid‑range while also giving weight to the standard non-parole period": LB v R at [39]. The difficulty with giving content to the standard non-parole period is highlighted by the facts here where counts 3, 4, 5 and 6, aggravated sexual intercourse with a child under 14 to 16, are more serious offences carried a maximum penalty of 12 years, but the standard non-parole period of five years. 2. Count 8, incite an act of indecency with a child with a disability carried a maximum penalty of 10 years: s 61O(1) Crimes Act. 3. Count 9, procure a child for unlawful sexual activity carried a maximum penalty of 10 years and four years standard non-parole period: S 66EB(3) Crimes Act. 4. Careful attention to maximums, and standard non-parole periods where applicable, is required. Both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between this case and other cases. That said, is it not appropriate to first look to a maximum or a standard non-parole period and then proceed by way of making proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31]. 5. The standard non-parole period represents the non-parole period for an offence, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. A process of comparing and contrasting the actual offence with the abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period: see s 54B(6) Crimes (Sentencing Procedure) Act and Tepania v R [20018] NSWCCA 247 [103] to [120]. I am still required to give content to the standard non-parole period, however as the High Court said in Muldrock v the Queen (2011) 244 CLR 120, neither can I engage in a staged approach to sentencing: at [28]. Accordingly, any suggestion of my finding the offence is either below or mid-range does not necessarily compel any one result. The case for the offender 1. I have before me an affidavit from Aziz. He was not required for cross-examination. That material set out is not controversial. In addition two friends, one of whom is also a work colleague, gave evidence in support of him today. Both spoke of Aziz as a man that they trust with their children who they find funny and likeable. They cannot accept that their friend committed these offences. 2. Aziz maintains his innocence as is his right. While he is not to be punished for exercising his right to trial, he can get no benefit from any expression of remorse, or for facilitating the course of justice by, for example, an earlier acceptance of responsibility. He always conducted himself with decorum during the court hearings. 3. Aziz is now 38 years old. He was born in Baghdad, Iraq, in 1983, one of five children brought up by their mother. He was brought up in the religion of John the Baptist, a religion he still observes. 4. Because of that religion, he had trouble in Iraq and he and his family suffered persecution. He was bullied at school. In 1999 the family went to Jordan to avoid that persecution and harassment. He missed some schooling as a consequence. He came to Australia in 2013. He had no English when he arrived, but he diligently engaged in courses. The evidence before me indicates that he has actively engaged in community and family activity since his arrival. 5. He has worked. He has obtained qualifications in a number of fields. He has diligently supported his young family and provided for his wife who he married in 2009. She is also from Iraq. They have three children and he contributes to their life together as a family both financially and emotionally. 6. Aziz was until he started committing these offences, of prior good character. It appears from all the material before me that these are his only instances of offending. Prior good character is one measure of future behaviour. 7. He will go to custody during the present COVID-19 pandemic. He will be subject to quarantine. If COVID-19 gets into the gaol he will not qualify for early release to parole. He will be subject to even more stringent restrictions than those that presently apply and like all judges. I note I have access to the Judicial Commission site which gives us up-to-date information on Corrective Services policies. He would not, while the pandemic continues, have personal visits with friends and family. Judges have been assured that Corrective Services are doing everything they can to expand audio visual contact visits. 8. Aziz will have less access to programs than would ordinarily be the case. Because of the pandemic he will be locked in his cell longer than would ordinarily be the case. He will suffer anxiety because he has no control over his own personal space or capacity for personal distancing. He will, given his support for his family and his hard work for his family, suffer because of the separation from them. 9. Hardship to family and dependants is an unavoidable consequence of a custodial sentence. In R v Edwards (1996) 90 A Crim R 510, it was held that absent exceptional circumstances this was regarded as not a mitigating consideration. There may be time to revisit that decision. This is certainly not a case of exceptional circumstances but it would be inhumane in any case where a person will be separated from a family that they have supported for all their lives not to take that matter into account. He has always provided for his family and they will now be deprived of his support and company a lengthy period. 10. Each case depends on the seriousness of the crime, the need for deterrence and the nature and degree of the impact of the sentence on the family. The offender will be separated from a loving family for whom he provides. They will be without their primary income provider. This removal for a lengthy period will have a significant and detrimental impact on him and them. Courts in the community are now much more aware of the impact of separation of children from parents than when Edwards was decided. In recent years, appellate Courts have revisited these long-held assumptions and recent decisions reflect a greater understanding of the long term psychological consequences of crimes on victims and of imprisonment on offenders and their families. Apparently, inflexible rules imposed upon sentencing judges are being reconsidered. Sentencing and sentencing principles should never be static, but reflect all relevant considerations of both the individual to be sentenced and of the crime for sentence. 11. Accordingly I do, although it is not by any means the most significant factor, take into account as part of my synthesis of all relevant factors, the impact on him of separation from his family and on his family of separation from him. Sentence Assessment Report 1. There is a Sentence Assessment Report before me. It confirms all of the subjective material that was put in the offender's case. It also annexes a report from a senior Corrective Services psychologist. She indicates that the Static-99R Coding Rules for sex offenders score this offender as zero. On that measure alone, he is not at a risk of re-offending. More importantly, any assessment of future risk would require a formal assessment of dynamic risk factors. Although Aziz denies the offence, this fact does not disentitle him to sex offender treatment. He told Community Corrections Officers that he would engage in treatment; showing a determination to utilise his time in custody as best he could. 2. One matter remains of concern, however. Ms Mackrell notes factors that could be indicate an increased risk for this offender; victim access, increased hostility, emotional collapse and collapse of current family support. There is little likelihood on release he will have any contact with the victim, but the other three factors are all consequences of a lengthy term of imprisonment. This creates a paradox. The longer this offender is gaoled, the more his risk factors will increase; a fact that has been the subject of a number of academic studies, many of which were collated by the 2011 Victorian Sentencing Assessment Council study of recidivism: Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council Victoria, April 2011 3. I trust that the fact he is a denier will not disentitle him from proper consideration for release to parole. But that remains a matter for the State Parole Authority. The structure of the sentence 1. The offences took place during four incidents. Some acts were preparatory to others, and many of the acts had common features. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Aziz's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17.There must be some accumulation of sentences to reflect these factors and the fact that there were four separate incidents. 2. He has no prior convictions. He was, prior to this offending a person of good character, respected by his family and the community. This will be his first time in gaol. That itself is not a reason for special circumstances, but it does indicate that his prior good behaviour can be a guide to his future good behaviour. He has demonstrated the capacity to live an active and normal community life. He will, with help, be able to do so again, after a long period in custody, adjustment to life on release will be assisted by monitoring and supervision for as long as practicable. The longer he serves on parole, the longer he is supervised on parole, the more the risk of re-offending and dealing with those factors identified in the report to which I have recently referred. Submissions 1. I am indebted to Madam Crown who appeared at trial and sentence and Mr Woods who appeared on sentence but not at trial. Madam Crown in her written submissions sets out relevant matters to which I hope I have, in these brief remarks, done justice. So too has Mr Woods. 2. In short, Madam Crown says that a substantial sentence is required because each of the offending acts falls within, objectively, the mid-range. She drew my attention to matters to which I trust I have referred which aggravate and properly mitigate the offending behaviour. 3. Mr Woods in particular drew my attention to the absence of a number of significant aggravating factors which are commonly found in matters such as this. Little degrading contact, no ejaculation, no physical injury or physical pain inflicted and limited coercion. They are all matters that I can and should take into account. 4. How then to synthesise all of these matters? In that synthesis I have formed the view that it is a finding of special circumstances justifying a long parole period is appropriate. That said, the minimum for which the offender should be imprisoned must reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] Synthesis 1. Aziz contested the verdict, as is his right. The sentence must, however, be consistent with and reflect the jury's verdict. The objective seriousness of each offence proved here individually and collectively requires a retributive sentence. So much is indicated by the maximum penalty and the standard non‑parole periods where appropriate. 2. Where 12 jurors representing our community have found someone guilty of multiple acts, a proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes. R v Herring (1956) 73 WN (NSW) 203, at 205. Retribution is a notion that reflects the community's expectation that offenders in such matters will suffer punishment, and that particular offences will merit severe punishment. That notion often goes hand in hand with the need for the sentences to deter this offender and others from committing such crimes. 3. Sentencing Courts also have an obligation to vindicate the dignity of the victim or complainant in the crime and to express a community's disapproval of offending of this nature. Orders 1. I will impose an aggregate sentence. The sentences have to be indicated, including where there is a standard non-parole period and that standard non-parole period which reflects a figure of about 65% of the otherwise appropriate sentence. 1. Count 1, s 61M(2): one year, eight months standard non-parole period. 2. Count 2, s 61M(2): one year, eight months standard non-parole period. 3. Count 3, s 66C(4): digital intercourse, three years, one year 11 months standard non-parole period. 4. Count 4, s 66(4): cunnilingus, four years, standard non-parole period two years, seven months. 5. Count 5, s 66C(4): fellatio, five years, non-parole period three years three months. 6. Count 6, s 66C(4): fellatio, five years, non-parole period three years, three months. 7. Count 7, s 61M(2) sentence of one year, three months non-parole period 10 months. 8. Count 8, s 61O(1): incite act of indecency, indicated sentence one year. 9. Count 9, s 66EB(3): procure unlawful sexual activity, sentence one year, non-parole period eight months. 1. There will be an aggregate sentence in this matter of eight years and six months. The non-parole period will be one of five year and six months. The sentence will commence, taking into account a day spent in custody, on 15 October 2020. The offender will be eligible for consideration for release to parole on 14 April 2026. The balance of term of three years reflecting a finding of special circumstance will commence on 15 April 2026 and expire on 14 April 2029. Eight years, six months. Five years, six months, start yesterday, released to parole if allowed, 14 April. Three-year non-parole period from that date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2021